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Nursing and Midwifery Board of Australia v Burling[2024] QCAT 208

Nursing and Midwifery Board of Australia v Burling[2024] QCAT 208

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v Burling [2024] QCAT 208

PARTIES:

Nursing and Midwifery Board of Australia

(applicant)

v

Bridie Burling

(respondent)

APPLICATION NO/S:

No. OCR 179 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 May 2024 (ex tempore)

11 June 2024 (written reasons)

HEARING DATE:

9 May 2024 (On-Papers Hearing)

HEARD AT:

Brisbane

DECISION OF:

Judicial Member P J Murphy SC

Assisted by:

Mr S Simpson

Ms J Felton

ORDERS:

  1. Pursuant to s 126(2) of the Health Ombudsman Act 2013 (Qld), the requirements of s 126(1)(b) of the Health Ombudsman Act 2013 (Qld) are dispensed with.
  2. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
  3. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  4. Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is disqualified from applying for registration as a registered health practitioner for three (3) years from the date of the order.
  5. Pursuant to s 196(4)(c) of the Health Practitioner Regulation National Law (Queensland), the respondent is prohibited from providing any health service until she obtains registration as a health practitioner.
  6. Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was charged with multiple criminal offences – where the respondent also failed to notify – where the Board submitted it was open to make a global finding of professional misconduct in relation to both grounds in the referral – whether separate findings of characterisation are required – professional misconduct established for both grounds

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – respondent is disqualified from applying for registration for three years

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Health Ombudsman Act 2013 (Qld) requires the Tribunal to be assisted by assessors – where the requirement can be dispensed with for reasons of urgency – where two professional assessors unavailable – where Tribunal proceeded with one professional assessor and one public assessor

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GIVING EFFECT TO MANIFEST INTENTION – where s 126(2) of the Health Ombudsman Act 2013 (Qld) provides for the Tribunal to proceed without the assistance of assessors – whether proper construction of the section applies to a single assessor

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545

Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690

Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167; 124 SASR 300

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Ombudsman v Abela [2023] QCAT 312

Health Ombudsman v Barber [2017] QCAT 431

Health Ombudsman v HCJ [2020] QCAT 166

Health Ombudsman v Henson [2020] QCAT 72

Health Ombudsman v McGuinness [2020] QCAT 1

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

Medical Board of Australia v Dolar [2012] QCAT 271

Medical Board of Australia v Mir [2017] VR 94

New South Wales Bar Association v Evatt [1968] HCA 20; 117 CLR 177

Nursing and Midwifery Board of Australia v Gardner [2021] SACAT 29

Seymour and Anor v Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159

Southern Law Society v Westbrook [1910] HCA 31; 10 CLR 609

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]
    On 23 April 2024 directions were made by Dann DCJ, the Deputy President of the Tribunal.  Within those directions, her Honour noted that the respondent to these proceedings, Ms Burling, had contacted the Tribunal on 22 April 2024 and had advised, further to her email of 21 February 2024, that she did not wish to participate in the proceedings and is content for the matter to proceed without her involvement.
  2. [2]
    The material in evidence before the Tribunal indicates that prior to those directions being made, Ms Burling was contacted on a number of occasions by the authorities investigating the matter which forms the subject of the referral to the Tribunal.  Ms Burling did not participate in that investigation and, as the notation to the directions indicates, ultimately advised the Tribunal that she did not wish to participate at all in the investigation or subsequent proceedings.
  3. [3]
    In the email to which the directions refer, Ms Burling said that she would “[n]ot be attempting to apply for an AHPRA registration at any time in the future due to my document [sic] criminal history”.  A notice of the hearing was subsequently forwarded to Ms Burling.  There was no response to that notice.
  4. [4]
    As a consequence of the circumstances just outlined, the hearing today proceeds on the papers.

The Constitution of the Tribunal

  1. [5]
    Section 126 of the Health Ombudsman Act 2013 (Qld) (HO Act) provides that in conducting a hearing of a disciplinary proceeding relating to a registered health practitioner, the Tribunal must be assisted by one assessor chosen by the Registrar from the public panel of assessors, and two assessors chosen by the Registrar from the professional panel of assessors for the practitioner’s profession.
  2. [6]
    The Tribunal was to be constituted in accordance with that section.
  3. [7]
    However, despite numerous attempts to contact one of the professional assessors, including on numerous occasions today, no response has been received.  No earlier indication had been received by the Tribunal that the third member of the Tribunal would not be available today.  Indeed, all indications prior to today were that her attendance could be expected.
  4. [8]
    It will be seen that s 126 is expressed in mandatory terms.  However, subsection (2) of that section provides that:

QCAT may conduct a hearing of a disciplinary proceeding without the assistance of assessors if QCAT are satisfied it is necessary because of the urgency of the matter.

  1. [9]
    Although that subsection refers to proceeding without the assistance of assessors, plural, it seems to me plainly implicit within the section that the same provision applies where only one of the assessors otherwise due to hear the matter is not available.
  2. [10]
    The Tribunal is satisfied that the present circumstances constitute circumstances of urgency within the meaning of that subsection. 
  3. [11]
    The proceeding has been within the Tribunal for some considerable period of time, the referral having initially been filed in July of last year.  Of course, the investigatory process preceding the filing of that referral stretches back further than that.  The material before the tribunal indicates that Ms Burling is a vulnerable person suffering from a number of psychological issues. 
  4. [12]
    In communications with the Deputy President’s Associate, Ms Burling has indicated a desire for this matter to be finished as soon as possible.  Further to that, criminal convictions and sentences imposed upon Ms Burling have included, most recently, a period of probation.  It is plain to the Tribunal that it would be to Ms Burling’s benefit for the proceedings to be concluded as soon as possible.
  5. [13]
    It should be noted additionally that s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that proceedings before the Tribunal should be conducted in a manner not only with as little formality and technicality as possible but also

with as much speed as the requirements of this Act or the rules and a proper consideration of the matters before the tribunal permit.[1]

  1. [14]
    In all of the circumstances, the Tribunal is satisfied the circumstances are urgent and that the hearing should proceed on the papers in the absence of one of the professional assessors.

What is the Basis for the Referral?

  1. [15]
    Ms Burling was registered as an enrolled nurse on 23 May 2019.  On 2 July 2021, she failed to renew her registration. 
  2. [16]
    In the five months preceding that date, she committed five criminal offences.  On 8 October 2021, Ms Burling pleaded guilty to those offences.  She was convicted and sentenced to a concurrent total of 17 months’ imprisonment, but released immediately on parole. 
  3. [17]
    Those offences found the instant referral to the Tribunal by the Board.
  4. [18]
    In addition, the Board alleges that, contrary to s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law), Ms Burling failed to notify the Board of the four criminal charges punishable by imprisonment of 12 months or more. 
  5. [19]
    The Board contends the commission of those offences and the failure to notify, taken together, constitute professional misconduct as defined in s 5 of the National Law.
  6. [20]
    The attempts to engage Ms Burling in the investigatory process have earlier been referred to.  So too has the indication by Ms Burling, both orally and by email on 21 February 2024 indicating an intention not to participate in the proceedings or, indeed, to attempt to apply for registration in the future.  It should be noted that the tribunal is empowered to hear the proceedings in Ms Burling’s absence; see section 57(1)(b) of the QCAT Act.  Ms Burling’s absence from the proceedings does not, however, absolve this Tribunal of its responsibilities to reach a conclusion by reference to the evidence before it.

What Convictions and Their Circumstances Found the Referral?

  1. [21]
    By s 79 of the Evidence Act 1977 (Qld), the facts of Ms Burling’s convictions is evidence before this Tribunal that she has committed the acts and possessed the state of mind which, at law, constitutes the relevant offences.  The conviction “amounts only to prima facie proof of the bare elements of the offence”.[2]
  2. [22]
    In the instant case, no evidence before the Tribunal contradicts or challenges the facts as outlined in either the police brief or the magistrate’s sentencing remarks which are before the Tribunal.  We proceed on the basis that those facts are established.[3]
  3. [23]
    The relevant offences embrace three separate occasions.
  4. [24]
    On 21 February 2021, Ms Burling assaulted a 54-year-old woman on a street in Coolangatta.  The assault was unprovoked.  The victim was punched repeatedly and pulled by the hair.  When she was on the ground, Ms Burling kicked her in the face.  An associate of Ms Burling stomped on the victim’s torso.  The victim suffered bruising and swelling to the left side of her face, a broken nose, and a fractured eye socket.  Ms Burling was convicted of assault occasioning bodily harm.
  5. [25]
    On 4 April 2021, police were investigating a domestic violence matter in which it is alleged Ms Burling was at premises in breach of an order.  Ms Burling’s conviction of serious assault on that occasion was founded on her kicking an investigating police officer in the testes during her resisting being removed from the premises.
  6. [26]
    Some six weeks later, on 24 May 2021, Ms Burling failed to leave licensed premises, assaulted a hotel employee in the process of being ejected from those premises, and also wilfully damaged a ceramic bowl during that process.  Ms Burling was convicted of each of those three offences.
  7. [27]
    Upon being charged with offences carrying a maximum penalty of 12 months’ imprisonment or more, a registered enrolled nurse, relevantly, is obliged to notify the board of the same.[4]  Four of the five offences with which Ms Burling was charged give rise to that reporting obligation.  Ms Burling did not notify the Board of the charges.  No communication from Ms Burling suggests a reason for that failure or any purported unawareness of her obligation.
  8. [28]
    The referral specifies each of the three occasions of criminal conduct as separate counts of unprofessional conduct and lists the alleged breach of section 130 separately.  The Board submits that a “global finding” of professional misconduct should be made: that Ms Burling’s conduct, including the s 130 failure to notify, constitutes professional misconduct, the latter aggravating the professional misconduct constituted by the commission of the offences.
  9. [29]
    That submission relies upon comments of Allen KC DCJ, the then-Deputy President to similar effect in Health Ombudsman v McGuinness.[5]   His Honour appears to have later qualified those comments in Health Ombudsman v Henson.[6]  In that case, the then Deputy President said, at [39]:

I am of the view that the proper approach is that, if the conduct constituting a contravention of s 130 of the National Law properly fits the definition of unprofessional conduct in s 5 of the National Law, then there should be a separate finding of unprofessional conduct.  The comments of the Honourable J.B. Thomas AM QC in Antley, and subsequent statements of the Tribunal to a similar effect should be regarded as confined to the issue of sanction in that in most, if not all, cases for the purposes of sanction, the contraventions of section 130 of the National Law are properly regarded as conduct secondary to the primary misconduct and aggravating the sanction required for such professional misconduct.

  1. [30]
    Respectfully, I prefer the latter approach, the effect of which is that a separate finding of professional misconduct should be made, if established, in respect of the failure to notify.  It is conduct given separate specific treatment by the legislature and should be treated as such in terms of findings by the Tribunal.  For the purposes of sanction, an established failure to notify constitutes conduct aggravating, relevantly, established professional misconduct.

Is the Alleged Conduct Professional Misconduct as Defined?

  1. [31]
    It is convenient to deal together with the three counts of established criminal conduct.  Each is founded on the same antecedent contention of unprofessional conduct as defined in subparagraph (c) of the relevant s 5 definition, namely:

the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the professional.

  1. [32]
    The Board relies only upon subparagraphs (a) and (b) of the definition of professional misconduct.  No finding is sought that Ms Burling is not a fit and proper person, as referred to in subparagraph (c) of the definition.
  2. [33]
    Reliance upon either of subparagraphs (a) or (b) of that definition requires proof that proven conduct is “unprofessional conduct”.  That term is also defined:

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.[7]

  1. [34]
    For “unprofessional conduct” to be established, it must be proved that there is “substantial” departure from the expected standard.  That, in turn, requires proof of a “large or considerable departure”, “more than a mere departure” which “could be the result of the extent and seriousness of the departure ... the deliberateness of the conduct, the consequences for the client, or other aspects of the conduct”.[8]
  2. [35]
    More than one instance of unprofessional conduct can, when considered together, fail to meet that standard and also be professional misconduct.  As can be seen, a finding of unprofessional conduct is a necessary antecedent finding to a finding of professional misconduct.  Unprofessional conduct as defined “means professional conduct that falls below the prescribed standard”, and includes, relevantly:
  1. the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.
  1. [36]
    As has been seen, the convictions for offences said to found unprofessional conduct and, in turn, professional misconduct, did not occur here in a professional setting or otherwise in the course of Ms Burling’s employment as an enrolled nurse.  The question then arises as to how that conduct can be “professional conduct” within the terms of the statutory definition earlier referred to and quoted.
  2. [37]
    Section 41 of the National Law accords to relevant codes of conduct, or guidelines, the status of evidence in relevant disciplinary proceedings.  The section refers to the “wide range in consultation” required prior to formulation and promulgation of such codes. 
  3. [38]
    While non‑adherence to relevant published codes or guidelines is not included as an instance of unprofessional conduct in the definition of same, s 41 contemplates their use as valuable evidence of what the profession, and thus, a nurse’s peers, regard as appropriate standards of conduct.
  4. [39]
    In respect of unprofessional conduct established by reference to Ms Burling’s breaches of the criminal law, the  Code of Conduct for Nurses provides strong evidence that those breaches are seen as falling below the standard reasonably expected of a nurse’s professional peers.
  5. [40]
    Clause 1.2 of the code deals with “lawful behaviour”.  Subparagraph (c) provides:

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.

  1. [41]
    The Code explicitly recognises, at that clause that unlawful behaviour “may damage the reputation of the profession”.
  2. [42]
    Thus, the Code provides evidence that the expression “professional conduct “ used in the definition is wide enough to embrace conduct outside of that occurring within the course of employment which such conduct has the capacity to impact upon the reputation of the profession in the eyes of the public.
  3. [43]
    The nature and extent of the criminal conduct engaged in by Ms Burling plainly has the potential to impact on the reputation of the profession and falls below the standard reasonably expected by her peers.  The same is equally true of the standard reasonably demanded by the public. 
  4. [44]
    Nurses, properly, enjoy a reputation as a caring profession who have the skills and personality to deal with patients in a wide variety of the settings.  Ms Burling’s criminal conduct plainly falls below what would be expected of a member of that caring profession. 
  5. [45]
    The Board submits (referring to a decision involving a medical practitioner) that “it is an intrinsic aspect of the profession that nurses do no harm in their physical contact with people”.  That submission should be accepted.
  6. [46]
    The Tribunal finds that Ms Burling’s criminal conduct falls substantially below the statutory standard and finds that her criminal conduct constitutes unprofessional conduct.
  7. [47]
    The submissions by the Board that the conduct is particularly egregious are accepted. It is submitted that egregious aspects of the conduct include that Ms Burling assaulted a police officer, occasioning bodily harm, and a hotel employee, both while they were on duty and Ms Burling also instigated violence against a 54 year old woman, dragging her by the hair and punching and kicking her in public view.
  8. [48]
    To those observations should be added the fact that in each instance the assaults were unprovoked and, taken together, the criminal conduct evidences repeated serious violence by Ms Burling.  The conduct was not a “one‑off”.  Similar serious violent behaviour occurred within a relatively short time frame after the first instance of conduct of which Ms Burling was convicted.
  9. [49]
    The Tribunal finds that professional misconduct constituted by the criminal offences committed on three separate occasions is established.

Failure to Notify

  1. [50]
    Failure to notify in accordance with s 130 of the National Law should not be seen as an unimportant procedural matter.  To the contrary, it is foundational to the protection of the public, which is the National Law’s primary purpose. 
  2. [51]
    Notification of charges can, and in this case would have, instituted an investigation which is the precursor to the steps taken by the Board fundamental to protecting the interests of the public from those who may not be fit to discharge the professional responsibilities attached to the relevant profession.
  3. [52]
    Failure to notify in accordance with s 130, without further explanation or other matters affecting its non‑adherence, should be seen as a serious matter and professional misconduct in that sense is, too, established.

What Sanction is Appropriate?

  1. [53]
    The Tribunal is cognisant of the principle that the purpose of sanctions is protective and not punitive.  As was said by a former Deputy President of the Tribunal, “Punishment is not the aim of sanctions imposed by the tribunal, although it may be an effect”.[9]
  2. [54]
    The health and safety of the public is the paramount consideration in imposing sanctions.  So much is made clear by s 4 of the HO Act.  Protecting the health and safety of the public includes preventing the same or similar conduct being perpetrated by the particular practitioner in the future. 
  3. [55]
    A number of factors have been established by the decisions of tribunals, and the courts as being relevant to that consideration.  They include:
    1. the past referral history and general character of the practitioner;
    2. whether there is genuine insight into the inappropriateness of the conduct, and an appreciation of the importance of relevant ethical standards;
    3. whether there is genuine remorse, evidenced, for example, by acceptance of the conduct and cooperation with the inquiry; and
    4. personal circumstances, including health or psychological issues.
  4. [56]
    Reference has already been made to Ms Burling’s failure to engage with the investigatory process.
  5. [57]
    It is worthy of note that in early communications forwarded by the Board to Ms Burling, assistance was offered to her.  In particular, reference was made in that early correspondence to the potential for Ms Burling’s suffering from an impairment within the meaning of the legislation.  The correspondence also pointed out that the investigatory process can, and likely would, be stressful, and that Ms Burling should take care of herself. 
  6. [58]
    Ms Burling’s failure to engage in the investigative process should, however, be seen against the background where the punishment for her criminal behaviour included her being ordered to be on parole which, of itself, involves, at least in its ideal formulation, Ms Burling engaging in such counselling and other services that might be provided through the parole office.
  7. [59]
    Sanctions directed to the health and safety of the public also have a broader purpose beyond those matters to which reference has just been made.  For example, it has been held that sanctions can make it clear that certain conduct is not acceptable.[10].  Furthermore, the Act’s primary consideration also embraces “upholding public confidence in the standards of the profession”.  It was said in Health Ombudsman v Barber,[11] that denouncing this conduct:

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 practise.[12]

  1. [60]
    Obviously enough, within those broad principles, each case falls to be considered by reference to its own facts and circumstances.  Regard can be had to comparable cases with a view to ensuring that a sanction imposed on a particular individual is not out of step with protective sanctions imposed in cases with comparable circumstances, and also as an attempt to maintain a measure of the consistency in the role of sanctions in maintaining proper professional standards.
  2. [61]
    The written submissions on behalf of the board properly make reference to important health and personal issues relevant to Ms Burling.  They include, for example, her plain, and it seems obvious, ongoing profound distress resulting from the suicide of her long‑term partner, who is also the father of the children.  It seems to be accepted that this horrific event was also the catalyst for what has been a severe alcohol abuse problem, and that alcohol abuse has plainly played a role in the criminal conduct of which Ms Burling has been convicted.  Further to those matters is the also important consideration that Ms Burling has been diagnosed with bipolar disorder and suffering from a borderline personality disorder. 
  3. [62]
    Those personal issues are both profound and highly relevant to the circumstances in which sanctions are imposed. 
  4. [63]
    As against those matters, it should also, nevertheless, be recorded that the professional misconduct involves repeated offences within a relatively short time frame.  The majority of those offences involve acts of serious violence.
  5. [64]
    The violence perpetrated upon the 54 year old woman was particularly serious.  It involved repeated acts of violence, including kicking her while she was on the ground.  The injuries sustained by the victim were significant.  It should be emphasised, I think, that this act of violence and, indeed, the acts of violence perpetrated on the police officer and the hotel employee, were all unprovoked.  The occasions of violence all occurred in public.  It seems clear that Ms Burling was the instigator of violence on each occasion.  Two of the offences involved an attack on authorities charged with, themselves, protecting the public.
  6. [65]
    Before the Tribunal is evidence of Ms Burling’s previous convictions.  The most relevant offence was an act of violence but, it seems plain, of a much more minor nature than that of which formed the basis of the circumstances currently being dealt with.
  7. [66]
    Written submissions by the Board also refer to further criminal offences committed by Ms Burling.  Those criminal offences were committed after Ms Burling’s registration had lapsed.  However, the Board says whilst not directly relevant in terms of the sanction to be imposed for the particular instances of professional misconduct with which the Tribunal is concerned, they are nevertheless relevant to the issue of risk.
  8. [67]
    That submission is, in my view, sound, at least to the extent that the offences involve the potential for violence.  For example, one of the offences with which Ms Burling was subsequently convicted was in relation to the unlawful possession of a weapon, which was apparently a knife.  It is also of some significance that the further offending took place while Ms Burling was on parole for the criminal conduct the subject of the professional misconduct findings.
  9. [68]
    The Board also submits that the additional criminal history is relevant because it demonstrates a lack of insight and remorse into the original offending and highlights the ongoing risk to the public of Ms Burling, should she seek to return to practice.
  10. [69]
    The Tribunal does not place significant weight on the asserted lack of insight and remorse given the very significant psychological issues which Ms Burling confronts.  However, the Tribunal does take into account that the commission of further criminal offences, particularly whilst on parole which, of itself, is designed to have rehabilitation as one of its functions, is relevant to the issue of risk.
  11. [70]
    The Board contends that the Tribunal should also take into account Ms Burling’s “indifference to the Board’s investigation and non‑participation in these proceedings”. Again, the Tribunal places little weight on that particular consideration in light of the personal psychological issues confronted by Ms Burling and her effectively contemporaneous interaction with the criminal justice system. 
  12. [71]
    None of those caveats, however, detract from the serious nature of the offences and the serious ramifications for those offences on the reputation of the nursing profession in general.
  13. [72]
    As earlier indicated, whilst a separate finding should be, and has been, made with respect to the breach of section 130, the sanction for that breach should be dealt with globally together with the sanctions otherwise relevant to the professional misconduct.
  14. [73]
    The Board has provided to the Tribunal cases which it is said are at least somewhat comparable to the instant.  They are Nursing and Midwifery Board of Australia v Gardner,[13] Medical Board of Australia v Mir,[14] Health Ombudsman v HCJ,[15] and Health Ombudsman v Abela.[16]
  15. [74]
    It should perhaps be said that findings of professional misconduct based upon criminal offences which are unrelated to the conduct by a nurse or other medical practitioner’s work are not common.  More commonly, criminal offences relate to matters that can be seen to be collateral to the conduct of the profession, for example the misuse of drugs, fraud, and the like. 
  16. [75]
    None of the cited cases are directly relevant.  But it is submitted by the board that reference to those authorities to which reference has been made sees comparability based on multiple instances of assault, including serious assault, by Ms Burling and violence against a police officer that should see Ms Burling’s criminal conduct be assessed as more serious than, for example, Mir, which is arguably the case closest in seriousness to that of Ms Burling’s.
  17. [76]
    Gardner is the case with probably the closest factual connection to the instant case.  The practitioner was a registered nurse who was convicted of two offences, including assault causing harm, which related to violent conduct taking place in public.  The practitioner threw about 11 punches into the left rear passenger window of a taxi after its occupants allegedly said something inappropriate to her. 
  18. [77]
    The Board submits that the conduct here is more serious, primarily because here the conduct is not an isolated or one‑off incident, but rather, three separate occasions of violent conduct within a relatively short period of time, and here, in contrast to Gardner, there is no evidence from Ms Burling of any insight and remorse into the Board’s investigation and the proceedings.  Further, again in contrast to Gardner, it is said that there’s no evidence before the Tribunal in this case that Ms Burling has managed underlying psychological conditions which plainly seem to be related to her offending. 
  19. [78]
    It is contended, therefore, that the sanction here should be more significant than that which was imposed in Gardner.  There, the disqualification was for two years of someone who did, it seem, intend to apply for registration in the future and it was noted that the disqualification period was in addition to the 18 months resulting from immediate action taken by the Board.  Ultimately, the Board contends for a disqualification period of three years.
  20. [79]
    In addition to the matters to which reference has already been made, it is the Tribunal’s view that the evidence before it is indicative of a troubled woman who has significant psychological issues which have effectively been the cause of her offending behaviour and which would need to be addressed prior to prior to any application for further registration as a nurse.  The diagnosis of bipolar disorder and borderline personality disorder, in particular, are indicative of significant further work needing to be done by Ms Burling to address underlying issues.
  21. [80]
    Furthermore, the horror of a partner’s suicide and the psychological ramifications of that seen against what seem to be serious underlying psychological issues suggest that a lengthy period of time should be allowed for Ms Burling to pursue, should she so desire, appropriate and extensive assistance, particularly in relation to her alcohol abuse and underlying psychological issues, prior to applying for registration, should she change her mind as to her desire to participate again in the profession at a later time. 
  22. [81]
    Taking all those matters into consideration, a period of disqualification of three years is considered appropriate.

Orders

  1. Pursuant to s 126(2) of the Health Ombudsman Act 2013 (Qld), the requirements of s 126(1)(b) of the Health Ombudsman Act 2013 (Qld) are dispensed with.
  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  3. Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is disqualified from applying for registration as a registered health practitioner for three (3) years from the date of the order.
  4. Pursuant to s 196(4)(c) of the Health Practitioner Regulation National Law (Queensland), the respondent is prohibited from providing any health service until she obtains registration as a health practitioner.
  5. Each party bear their own costs.

Footnotes

[1]  QCAT Act s 28(3)(d).

[2]  See, e.g. Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690, [23] and more recently, in a different context, Seymour and Anor v Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159, [73] (Henry J).

[3]  See QCAT Act s 28(3).

[4]  National Law s 130.

[5]  [2020] QCAT 1, [12].

[6]  [2020] QCAT 72.

[7]  National Law s 5 (emphasis in original).

[8]  See, e.g. Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167; 124 SASR 300, [110].

[9] Medical Board of Australia v Dolar [2012] QCAT 271, [30], citing Legal Services Commissioner v Madden (No 2) [2008] QCA 301, [122], New South Wales Bar Association v Evatt [1968] HCA 20; 117 CLR 177 and Southern Law Society v Westbrook [1910] HCA 31; 10 CLR 609.

[10]  See, e.g. Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545, [48]; Health Care Complaints Commission v Do [2014] NSWCA 307 (‘Do’), [35].

[11]  [2017] QCAT 431.

[12]  Ibid, [37] quoting Do (n 10), [35].

[13]  [2021] SACAT 29 (‘Gardner’).

[14]  [2017] VR 94.

[15]  [2020] QCAT 166.

[16]  [2023] QCAT 312.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Burling

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Burling

  • MNC:

    [2024] QCAT 208

  • Court:

    QCAT

  • Judge(s):

    Judicial Member P J Murphy SC

  • Date:

    11 Jun 2024

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
Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690
2 citations
Jump To
Cite 1 - [2010] QCAT 690
Cite 2 - [2010] QCAT 690
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167
2 citations
Jump To
Cite 1 - [2015] SASCFC 167
Cite 2 - [2015] SASCFC 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 Abela [2023] QCAT 312
2 citations
Jump To
Cite 1 - [2023] QCAT 312
Cite 2 - [2023] QCAT 312
Health Ombudsman v Barber [2017] QCAT 431
2 citations
Jump To
Cite 1 - [2017] QCAT 431
Cite 2 - [2017] QCAT 431
Health Ombudsman v HCG [2020] QCAT 166
2 citations
Jump To
Cite 1 - [2020] QCAT 166
Cite 2 - [2020] QCAT 166
Health Ombudsman v Henson [2020] QCAT 72
2 citations
Jump To
Cite 1 - [2020] QCAT 72
Cite 2 - [2020] QCAT 72
Health Ombudsman v McGuinness [2020] QCAT 1
2 citations
Jump To
Cite 1 - [2020] QCAT 1
Cite 2 - [2020] QCAT 1
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 Mir [2017] VR 94
2 citations
Jump To
Cite 1 - [2017] VR 94
Cite 2 - [2017] VR 94
New South Wales Bar Association v Evatt (1968) HCA 20
2 citations
Jump To
Cite 1 - (1968) HCA 20
Cite 2 - (1968) HCA 20
Nursing and Midwifery Board of Australia v Gardner [2021] SACAT 29
2 citations
Jump To
Cite 1 - [2021] SACAT 29
Cite 2 - [2021] SACAT 29
Seymour v Drill Engineering & Pastoral Co Pty Ltd [2023] QCA 159
2 citations
Jump To
Cite 1 - [2023] QCA 159
Cite 2 - [2023] QCA 159
Southern Law Society v Westbrook [1910] HCA 31
2 citations
Jump To
Cite 1 - [1910] HCA 31
Cite 2 - [1910] HCA 31

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v MKY [2024] QCAT 3102 citations
Nursing and Midwifery Board of Australia v LYS [2024] QCAT 2092 citations
1

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