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Nursing and Midwifery Board of Australia v LYS[2024] QCAT 209

Nursing and Midwifery Board of Australia v LYS[2024] QCAT 209

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v LYS [2024] QCAT 209

PARTIES:

Nursing and Midwifery Board of Australia

(applicant)

v

LYS

(respondent)

APPLICATION NO/S:

No. OCR 176 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 June 2024

HEARING DATE:

31 May 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member P J Murphy SC

Assisted by:

Ms S Hopkins, Nursing Panel Member

Ms E McKibbin, Nursing Panel Member

Mr P Zimon, Public Panel Member

ORDERS:

  1. In respect of the conduct of the practitioner as alleged in ground 1 of the referral, pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the practitioner has behaved in a way that constitutes professional misconduct.
  1. In respect of the conduct of the practitioner as alleged in ground 2 of the referral, pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the practitioner has behaved in a way that constitutes unprofessional conduct.
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the practitioner is reprimanded.
  3. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was charged with 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

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent’s convictions were for domestic violence offences – whether domestic violence capable of constituting professional misconduct – professional misconduct established

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – UNPROFESSIONAL CONDUCT – where respondent failed to notify of conviction – whether capable of constituting professional misconduct globally – where separate finding required – unprofessional conduct established

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – reprimand

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

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

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Haasbrook [2018] NSWCATOD 177

Health Ombudsman v Antley [2016] QCAT 472

Health Ombudsman v Barber [2017] QCAT 431

Health Ombudsman v Gillespie [2021] QCAT 54

Health Ombudsman v Hardy [2018] QCAT 416

Health Ombudsman v HCG [2020] QCAT 166

Health Ombudsman v Henson [2020] QCAT 72

Health Ombudsman v JTM [2020] QCAT 394

Health Ombudsman v McGuiness [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 Grant [2012] QCAT 285

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

Medical Board of Australia v Jansz [2011] VCAT 1026

Medical Board of Australia v Jones [2012] QCAT 362

Medical Board of Australia v POS (Review and Regulation) [2019] VCAT 1678

Medical Board of Australia v PYP [2021] VCAT 876

Nursing and Midwifery Board of Australia v Augustin [2022] ACAT 54

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

Nursing and Midwifery Board of Australia v GMR (Review and Regulation) [2020] VCAT 157

Nursing and Midwifery Board of Australia v VQK [2022] VCAT 375

Pharmacy Board of Australia v Thomas [2011] QCAT 637

Psychology Board of Australia v Griersmith (Review and Regulation) [2019] VCAT 52

APPEARANCES & REPRESENTATION:

Applicant:

D Freeburn instructed by Clayton Utz

Respondent:

S Robb KC instructed by QNMU Law

REASONS FOR DECISION

  1. [1]
    LYS is a registered nurse.  Her original qualifications were obtained in Canada but in 2008 she moved permanently to Australia, obtaining registration here the same year.  She has worked as a registered nurse since in a number of different areas including aged care and mental health.
  2. [2]
    On 27 April and 28 May 2021, LYS was convicted on her pleas of guilty of four offences in the Magistrates Court of Queensland.  Those convictions found the first of two Grounds in the Referral to this Tribunal by the Nursing and Midwifery Board of Queensland.[1]
  3. [3]
    It is contended that those convictions constitute “professional misconduct” as that term is defined in the National Law.[2]  That conclusion is admitted by LYS as are the facts alleged by the Board leading to it. 
  4. [4]
    The Referral’s second Ground alleges professional misconduct by reason of LYS failing to notify the Board of the conviction or charges as required by s 130 of the National Law.   The factual basis for that allegation is also admitted.   LYS contends the failure to notify constitutes unprofessional conduct.
  5. [5]
    Irrespective of any concessions as to the categorisation of the admitted conduct, it is for the Tribunal to assess independently whether the admitted conduct satisfies the relevant statutory definitions, if so satisfied, to impose a sanction or sanctions consistent with the objectives and guiding principles[3] of the National Law.
  6. [6]
    These reasons are directed to the Tribunal’s determination of each of those issues.

What Conduct Founds Ground 1?

The Relevant Offences

  1. [7]
    LYS was convicted of the following offences:
    1. Driving under the influence of liquor;
    2. Enter dwelling without consent of owner or person in lawful occupation;
    3. Common assault (Domestic Violence Offence); and
    4. Wilful damage (Domestic Violence Offence).
  2. [8]
    For the driving offence, LYS was fined $800 and disqualified from holding or obtaining a driver’s licence for seven months.
  3. [9]
    On the remaining offences, LYS was sentenced to nine months probation.  No conviction was recorded.

The Factual Context

  1. [10]
    The relevant offences occurred in the early hours of the morning on 17 April 2021.  While intoxicated, LYS drove to the residence currently occupied by her ex-partner and his two children, then aged 18 and 17.[4]
  2. [11]
    The property had previously also been occupied by LYS.   She and her ex-partner had been in a relationship for about four-and-a-half years.  The relationship had ended about 12 months previously.
  3. [12]
    LYS was not permitted to enter the property without her ex-partner’s permission and, presumably to that effect, the locks had been changed.  LYS did not have a key.
  4. [13]
    On the night in question, LYS entered the residence by removing a screen panel on the middle floor of the three-storey property.  The wilful damage charge results from damage to that panel and a screen door in the middle of the property.  The extent of the damage can be gleaned from the fact that no compensation order was sought in respect of those items due to the low cost of repair.
  5. [14]
    After entering the property, LYS proceeded upstairs to her former partner’s bedroom.  When he woke, a verbal altercation ensued, and her former partner physically removed her from the premises and locked the door behind her. 
  6. [15]
    LYS re-entered the property.  Her former partner saw her in the dining room with a knife.  LYS held the knife in a threatening manner and said words to the effect, “I will fucking stab you”. 
  7. [16]
    Her ex-partner approached LYS and disarmed her by pushing her back onto the dining room table and squeezing her wrist with the knife in her hand and stating “drop the knife, drop the knife” multiple times.  Eventually the ex-partner removed the knife and forced LYS out of the house and into the garage section of the property.
  8. [17]
    Emergency 000 calls were made by the ex-partner’s daughter and the ex-partner.[5]  When police attended, they located LYS in the garage at which time she approached police and identified herself.[6]

What Conduct Founds Ground 2?

  1. [18]
    LYS’ conviction for driving under the influence of alcohol and her being charged with the remaining offences each gave rise to an admitted obligation to notify the Board of the occurrence of each within 7 days.[7]
  2. [19]
    LYS admits she did not notify the Board within that time frame.  However, the Board was notified through lawyers acting on her behalf within a fortnight after the statutory deadline. 
  3. [20]
    The Board accepts there “is no indication that [LYS] had dishonest intent or that [she] made a deliberate attempt to deceive the Board” and that the Board was notified “although it was outside the statutory timeframe”.[8]

Is it Open to Make a “Global Finding” in Respect of Grounds 1 and 2?

  1. [21]
    The Board’s written submissions contend:

… it is open to the Tribunal to make a “global finding” in respect of both grounds that the practitioner has engaged in professional misconduct pursuant to limbs (a), (b) and (c) of the definition of that term in the National Law.[9]

  1. [22]
    Concerns as to the correctness of that submission were raised by me in argument.  No citation sustaining that approach is given by the Board in its written submissions, but I apprehended it was based, at least in part, upon what was said by then-Deputy President of this Tribunal, Allen KC DCJ in Health Ombudsman v McGuiness.[10]
  2. [23]
    As I indicated in argument, his Honour appears to have later qualified those comments in Health Ombudsman v Henson.[11]  In Henson, his Honour 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 s 130 of the National Law are properly regarded as conduct secondary to the primary misconduct and aggravating the sanction required for such professional misconduct.

(citation added)

  1. [24]
    In Nursing and Midwifery Board of Australia v Burling[12] I indicated that, respectfully, I agree with the latter approach.
  2. [25]
    In my view an approach which separates findings in respect of the asserted contravention of s 130 emerges as preferable from the legislature itself separating that conduct from other defined misconduct.  It is a different type of conduct to that which founds satisfaction of the definitions of misconduct in section 5 (albeit that it is the s 5 misconduct that founds the failure to notify).  Further, the failure to notify might involve conduct attended by more serious, or less serious, circumstances than those attending the other alleged misconduct and findings should reflect any such differences.
  3. [26]
    Ultimately, the Board amended its position so as to submit that the failure to notify should be seen as unprofessional conduct.  Of course, as was pointed out in Health Ombudsman v Antley,[13] the making of separate findings in respect of failure to notify does not preclude a sanction or sanctions being applied globally.

How Should the Admitted Conduct in Ground 1 be Characterised?

  1. [27]
    The Board contends in Ground 1 that professional misconduct is established by reference to “paragraphs (a) and/or (b) and/or (c) of the definition of that term …”.[14]
  2. [28]
    That definition is:

professional misconduct, of a registered health practitioner, includes—

  1. unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  1. more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 
  1. conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.[15]
  1. [29]
    It can be seen that establishing “professional misconduct” by reference to either paragraph (a) or (b) is dependent upon an antecedent finding that the proven or admitted conduct is unprofessional conduct.
  2. [30]
    “Unprofessional conduct” is also a defined term:

… 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…[16]

  1. [31]
    Eight forms of conduct are specified as included within the definition.  The third form of conduct included is:
  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…[17]
  1. [32]
    For the proven “unprofessional conduct” to amount to “professional misconduct” it must be proved that there is “substantial” departure from the expected standard.
  2. [33]
    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”.[18]

Can Family Violence Amount to “Professional Misconduct”

  1. [34]
    As can be seen, unprofessional conduct is defined as meaning “professional conduct” that falls below the prescribed standard. 
  2. [35]
    That professional conduct includes, relevantly, the paragraph just quoted which confines convictions caught by the definition to those which impact upon suitability to practise the particular profession.  
  3. [36]
    The legislative context within which that definition is to be interpreted includes the “main guiding principle” governing the National Law’s registration and accreditation scheme.  The main guiding principle is contained in s 3A(1) of the National Law, as are further guiding principles for that scheme. 
  4. [37]
    Section 3A(1) provides:

The main guiding principle of the national registration and accreditation scheme is that the following are paramount—

  1. protection of the public;
  1. public confidence in the safety of services provided by registered health practitioners and students.
  1. [38]
    Paragraph (c) of the additional guiding principles contained within s 3A(2) provides:
  1. restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
  1. [39]
    It might be argued that a conviction for family violence which does not occur within, or have connection to, the practice of the profession is not “professional” conduct but, rather, private conduct and, as a result, is not caught by the definition. 
  2. [40]
    However, any such arguments have been rejected by the decisions of this and other like Tribunals.  The relevant reasoning can be seen exemplified in Health Care Complaints Commission v Haasbrook.[19] In that decision, then-Deputy-President Boland ADCJ said of a medical practitioner convicted of a family violence offence (at [92]–[94]):

We are conscious that our orders must first and foremost be designed to protect the health and safety of the public.  No element of risk to the general public requires consideration in this case.  There is no complaint before us that the practitioner has been other than a diligent and dedicated practitioner who has served the Leeton community well since 2002.

Our orders, however, must also uphold the standards of members of the medical profession to ensure that they continue to be held in high regard by their patients, the public generally, and other professionals. This means practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour. General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary.

Our orders must also have an element of deterrence, so that other practitioners will be aware of the consequences of inappropriate behaviour in both their professional and personal lives.

  1. [41]
    Those statements can be seen to apply equally to the nursing profession whose public standing is high by reason of its reputation for compassionate care in often difficult circumstances.
  2. [42]
    In Health Ombudsman v HCG,[20] a decision referred to in the Board’s written submissions, the Tribunal referenced Haasbrook, above, and referred to “considerations of general deterrence, the maintenance of professional standards and public confidence” as factors justifying family violence offences falling within the statutorily-defined misconduct.
  3. [43]
    The Board’s written submissions also quote this passage from Pharmacy Board of Australia v Thomas:[21]

… the professions expect their members to be law abiding.  If a member of the profession commits a criminal offence punishable by imprisonment, this reflects on the profession and may damage public confidence in it.

Do the Convictions Amount to Professional Misconduct?

  1. [44]
    LYS has plainly been “convicted of an offence under another Act” within the meaning of the definition of unprofessional conduct.
  2. [45]
    Once it is accepted, per force of the reasoning outlined in the cases to which reference has just been made (and other decisions to similar effect), that the convictions for family violence conduct can be of a “nature which may affect [LYS’] suitability to continue to practice [as a nurse]”, her convictions can be seen to be conduct of a type embraced by paragraph (c) of the conduct included within the definition of “unprofessional conduct”.
  3. [46]
    The next question is whether the conduct embraced in those convictions is “of a lesser standard than that which might reasonably be expected of [a nurse] by the public or the [nurse’s] professional peers”.
  4. [47]
    Section 41 of the National Law permits, relevantly, The Code of Conduct for Nurses (2018) to be used as evidence of “what constitutes appropriate professional conduct or practice for [nurses]”.  Put another way, the provisions of the Code can provide evidence of what is seen as falling below the standard reasonably expected by a nurse’s professional peers.
  5. [48]
    The “wide-ranging consultation” required by s 40 of the National Law in the promulgating of such a Code speaks to the strength of the evidence provided by its provisions in addressing that central issue.  The Tribunal is also greatly assisted in that respect by its members representing the profession.
  6. [49]
    The Board relies on a number of specific provisions of that Code which emphasise, among other things, the high standards of conduct expected of nurses in their personal lives and an admonition as to participating in unlawful behaviour.[22]
  7. [50]
    LYS’ conduct on the night in question falls below the standards there outlined. The Tribunal is satisfied that LYS’ convictions amount to unprofessional conduct.
  8. [51]
    On any objective analysis, the conduct founding the convictions should be viewed as serious — a finding supported by the statements made in the Tribunal decisions already referred to and by statements of the sentencing Magistrate.[23]  The degree of departure can only be seen as substantial.
  9. [52]
    The convictions represent a course of conduct occurring at the same time, or relatively contemporaneously, and offences dealt with together.  There should be a finding that paragraph (a) of the definition of professional misconduct is established.
  10. [53]
    Paragraph (b) of the definition of professional misconduct is also satisfied.  Each of the four convictions constitute, of themselves, “unprofessional conduct”.  When considered together, they constitute conduct falling substantially below the requisite standard.

Is Paragraph (c) of the Definition of “Professional Misconduct” Established

  1. [54]
    Satisfaction of paragraph (c) of the definition does not require an antecedent finding of unprofessional conduct.  A different question must be addressed.
  2. [55]
    The Board submits,[24] with respect correctly, that the paragraph is directed to the relevant conduct as distinct from underlying personal characteristics that might fit the description “fit and proper person”. Of course, though, the two can be overlap.
  3. [56]
    It is also submitted that among the wide range of matters that might be considered as constituting the undefined “fit and proper person”, is:

…whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails.[25]

  1. [57]
    Recognition that the conduct engaged in by LYS is serious and deserving of condemnation does not of itself indicate that it is conduct exhibiting an insufficiency of “moral integrity” or “rectitude of character”.
  2. [58]
    The Board’s contention that a period of suspension of between one month and three months cannot (and should not) be seen as a submission that LYS “cannot be entrusted with the sort of work that [registration as a clinical nurse] entails” or that her conduct is “inconsistent with being a fit and proper person to hold registration [as a nurse]” at all.
  3. [59]
    In the Tribunal’s view, the instant conduct - notwithstanding its nature and seriousness – does not lead to the conclusion required for the application of paragraph (c) of the definition.

How Should the Admitted Conduct in Ground 2 be Characterised?

  1. [60]
    Reference has earlier been made to the concessions properly made by the Board as to the circumstances of LYS’ failure to notify.
  2. [61]
    In light of the discussion earlier outlined, the Board now concedes that the conduct should be categorised as “unprofessional conduct”.  LYS admits the same.
  3. [62]
    The mandatory notification required by s 130 should not be seen as unimportant or as merely a matter of procedure.   Its purpose is clear and is central to the proper supervision of the relevant professions and the safety of the public.  Deceitful avoidance of its requirements should be seen as a serious matter.
  4. [63]
    It is agreed there are no such circumstances here.  The failure to notify occurred in the midst of actions leading to a criminal process and in the midst of very difficult personal circumstances: LYS was seeking to cope with a number of challenging issues.   Notification was given through LYS’ solicitors some two weeks outside the required time frame. 
  5. [64]
    There is a departure from the statutory standard required of LYS but it is not substantial.
  6. [65]
    The mutual concessions that unprofessional conduct is established are well founded.  The Tribunal finds accordingly.

What Sanction Should be Imposed?

  1. [66]
    The Board submits that LYS should be reprimanded and be “suspended from practice for a period of 1-3 months”.[26]
  2. [67]
    It is submitted on behalf of LYS that a reprimand is appropriate but “if the Tribunal is minded to impose a period of suspension … the Tribunal should consider imposing a suspension of only one month …’.
  3. [68]
    The Tribunal has determined that no period of suspension is appropriate in this case and that the appropriate sanction in respect of both grounds is that LYS should be reprimanded.   The reasons for that conclusion follow.

Relevant Principles

  1. [69]
    The principles underlying the imposition of sanctions are well-established and understood, but they should briefly be referred to.
  2. [70]
    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 of them.[27]  Sanctions are directed toward protecting the public and ensuring their safety.
  3. [71]
    Sanctions also have a broader purpose.  Upholding public confidence in the standards of the profession is an important aspect of sanction[28] and can include, for example “… making it clear that certain conduct is not acceptable”.[29]  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.[30]

  1. [72]
    The repugnance with which particular forms of conduct are viewed by the public and a professional’s peers is relevant both to the categorisation of the conduct and the sanction to be imposed.
  2. [73]
    Importantly, however, within the broad principles just referred to each case falls to be considered by reference to its own facts and circumstances.[31]

Relevant Considerations

  1. [74]
    A number of factors are relevant to placing an individual case — the individual professional — within the broad principles just discussed.  The Victorian Tribunal has said:[32]

With that protective focus in mind, the Tribunal considers a range of factors including:

• the nature and seriousness of the conduct;

• whether the practitioner pleaded guilty or other evidence of contrition or remorse;

• whether there is a need for specific deterrence (deterring the particular practitioner from further inappropriate conduct) or general deterrence (deterring other practitioners from engaging in similar conduct);

• whether there have been other disciplinary findings before or since the conduct in question;

• evidence of character; 

• evidence of rehabilitation;

• any delay from the time the investigation started to the end of the Tribunal hearing;

• other mitigating factors such as medical or psychological evidence, family or other personal circumstances.

  1. [75]
    The conduct here should be seen as serious.  Its classification as family violence of itself renders it serious as does the fact that a knife was involved in the incident. Reference has already been made to remarks of the sentencing Magistrate.
  2. [76]
    However, the seriousness of the conduct and the Magistrate’s remarks receive their proper context in the sentence imposed: a 9-month period of probation (without specific conditions) and a non-conviction order. 
  3. [77]
    Specific deterrence is not an issue in this case.  There is no evidence which suggests the public are at risk from LYS continuing to practise as a nurse.
  4. [78]
    Indeed the opposite picture is painted by the numerous professional and personal references before the Tribunal.  The evidence suggests LYS has been an exemplary nurse working, in particular, within the difficult and high-stress area of mental health.
  5. [79]
    Since obtaining registration in Australia, LYS has completed a Masters degree; undertaken academic and research work including conducting university tutorials and marking; and contributed to academic publications.
  6. [80]
    It is plain that LYS is highly regarded professionally; her work is of a very high standard; and her approach to patients is caring, compassionate and appropriate.
  7. [81]
    There is no disciplinary history antecedent to the instant conduct and no suggestions of any similar conduct (or any other types of disciplinary concerns) in the three years since the event and convictions occurred.
  8. [82]
    LYS was affected by alcohol on the night of the incident but there is no suggestion of problems with alcohol that might cause concerns as to the repetition of the behaviour.
  9. [83]
    The affidavits filed by LYS in these proceedings (unchallenged either by cross-examination or other evidence) depose to a relationship with her former partner marked by them, assuming care for the two teenage children of his former relationship.  She deposes to significant tensions resulting therefrom.  It appears those tensions were the catalyst for the breakdown of the relationship. The breakdown of the relationship was also attended by significant conflict and tension.
  10. [84]
    Dr D, an Associate Professor at a university, has provided a reference for LYS and attests to her behaviour being completely out of character. Further, he confirms LYS’ account that she had been attempting to resolve issues from the breakdown of her relationship for some time and that this had been a source of significant stress and tension.  Of significance, Professor D was also present at a formal mediation of those issues which, he says:

… broke down … with [the former partner] calling [LYS] expletive terms, him standing and him aggressively asserting that he would drag out the settlement process with the goal of inflicting the maximum financial damage on [LYS].

  1. [85]
    LYS had been excluded from the property in which she had invested significant capital; to which her former partner had contributed negligible capital; and in respect of which she was a co-borrower.  She deposes to behaviour by her ex-partner, particularly in relation to reasonable attempts by her to effect a property settlement, which persuades the Tribunal to accept the submission made on her behalf that the affidavit:

…outlines other, non-physical ways in which the [ex-partner’s] relationship with her demonstrated coercive control, and was psychologically, emotionally, verbally and financially abusive”.[33]

  1. [86]
    That is, LYS was subjected to conduct that meets the description of family violence.
  2. [87]
    It should immediately be emphasised that LYS does not seek to raise these matters as excusing her behaviour.  Nor does the Tribunal regard it as such. Those matters do, however, provide light and shade to the conduct constituting the offences; they reinforce the contention that the conduct is out of character; and they serve as a point of distinction from conduct (and offences) in other cases where those circumstances were not present.
  3. [88]
    The Board’s written submissions contend at [46]:

To her credit, [LYS] has demonstrated considerable insight into her behaviour including co-operating with the police upon their attendance at the residence, her pleas of guilty in the criminal proceedings and her contrition (as evidenced by her disclosure of the conduct to various colleagues in order to obtain personal and professional references).  In addition to this, [LYS] has reported attendance upon a psychologist for ongoing support, lifestyle adjustments and her intention to engage in a training program with Davaar [Consultancy].

  1. [89]
    However, the Board goes on to contend:

There is a clear absence of [LYS] reflecting engaging in any meaningful way with the impact her conduct (however justified) had on the victim — being her ex-partner — and his family, notably his daughter.

  1. [90]
    Respectfully, in so far as the submission contends for an absence of reflection or engagement with the impact of her conduct, the submission is rejected. 
  2. [91]
    The Tribunal takes a different view of the evidence before it.  A letter of apology was written to her ex-partner and the children.  It strikes the Tribunal as sincere.  It records, among other things, “I have reflected on this night over and over again and can empathise with how frightening this would have been, especially to [her ex-partner] who was asleep when I entered the bedroom”.
  3. [92]
    Further, the engagement with Davaar Consultancy – referred to in the Board’s submissions as something intended - has taken place.  Reports from the relevant psychologist outline the sessions which have taken place and record for example:[34]

Despite those ongoing stressors [the complaint; her mother’s illness; workplace stressors], [LYS] has remained committed and motivated to learn what she can from this education, to integrate learning into her professional role and to make changes to areas of vulnerability for her in her personal life…

I assess [the programme] has extended and deepened her understanding of her professional codes and the [National Law].

I assess that [LYS] is a reflective practitioner, she was considered in her responses to questions I posed to her.  She was willing to ask for guidance… [LYS] has been reflective of her actions which led to the complaint… [LYS now has a greater understanding that the actions a nurse take[s] in their professional life may cause the public to form a negative view of nurses and of the profession.

What Comparative Cases Are Relied Upon?

  1. [93]
    The facts and circumstances of earlier decided cases are unlikely to be identical with those under consideration, but regard can 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 cases with comparable circumstances, and also as an attempt to maintain a measure of consistency in the role of sanctions in maintaining proper professional standards.
  2. [94]
    The Board seeks to draw comparison with six decisions detailed in its written submissions.  These are:
    1. HCG (n 20);
    2. Medical Board of Australia v PYP;[35]
    3. Nursing and Midwifery Board of Australia v VQK;[36]
    4. Health Ombudsman v JTM;[37]
    5. Nursing and Midwifery Board of Australia v GMR (Review and Regulation);[38] and
    6. Nursing and Midwifery Board of Australia v Augustin.[39]
  3. [95]
    Suspensions of varying periods were ordered in four of those decisions in addition to a reprimand.  All emphasise the importance of “general deterrence”.
  4. [96]
    The conduct in HCG, involved a factual situation much more serious than the instant case.  The doctor was the subject of an existing family violence order and the subject conduct involved him breaching that order by headbutting the complainant and smashing her phone when she attempted to use it to access assistance. He had additional disciplinary history emanating, it seems, from psychiatric issues and cannabis use.  The doctor was suspended for eight months.
  5. [97]
    The doctor in PYP was reprimanded and suspended for 6 months.  He punched his wife on the nose fracturing it; causing pain, bleeding, and bruising.  The assault occurred in front of their one-year-old child.  He was put on a good behaviour bond and ordered to undertake 50 hours community work.  No conviction was recorded.  General deterrence was emphasised and it was held a reprimand (although “a serious matter”) was insufficient as “a period out of practice is required to send a sufficiently clear message to others in the profession about the consequences that will follow to stay their hand before they use such violence on family members”.
  6. [98]
    The balance of the decisions referred to by the Board involve nurses.
  7. [99]
    The circumstances in VQK are quite different to the instant circumstances.  The nurse was convicted of stalking his former partner.  He also posted intimate photos of her by logging into her Facebook page.  He threatened suicide in threatening emails and attributed his desire to commit suicide to her leaving him.  The offences had a dramatic impact upon his former partner, necessitating her taking six months long service leave to “process” what had happened to her. The effects were ongoing.  VQK was suspended for six months.
  8. [100]
    The nurse in JTM had lived in a de facto relationship with his partner for about three years.  The relevant conduct resulted in JTM being convicted in the District Court.  The sentence of 6 months imprisonment fully suspended for two years and the recording of a conviction reflects the sentencing Judge’s view of the seriousness of the conduct.  That conduct was described in the Tribunal’s reasons (at [9]) as follows:

In the course of the argument, the respondent armed himself with a kitchen knife and grabbed his partner around the throat from behind with his left hand and held the knife in his right hand. She attempted to break his grip by biting at his hand. The respondent held the knife above her head and made stabbing motions towards the top of her head and, at one stage, she could actually feel the tip of the knife on the top of her head.

  1. [101]
    The conduct was witnessed by the nurse’s stepdaughter aged 15, her six-year-old brother and his nurse’s 18-month-old child.  The 15-year-old screamed to let her mother go.  The nurse then struck that child in the face “with an open palm causing her lips to swell, her glasses to be dislodged and her nose to bleed” and causing her pain (at [10]).   The partner and children then barricaded themselves into the bedroom until police arrived.  When police arrived, the nurse forcibly resisted.
  2. [102]
    The Tribunal reprimanded the nurse.  Direct comparison with the instant case is clouded by the fact that the nurse had not worked as such for some six years prior although the Tribunal noted that earlier |actions of the Health Ombudsman “effectively led to a 24-month suspension of his registration”.   The conduct in this case – particularly physical violence and injury to a child -  is in any event regarded as markedly more serious than the instant case – a conclusion supported by a comparison of the criminal penalty imposed in each.
  3. [103]
    The nurse in GMR, above, was suspended for one month.  The Tribunal reasons record the relevant conduct (at [3]) as:

In June 2018, GMR assaulted his then 16 year old daughter with a wooden rolling pin for around 20 minutes after seeing a boy enter the family home … GMR’s purpose in assaulting his daughter was to elicit information about the boy and why he was in the home.

  1. [104]
    The girl was taken to hospital by ambulance “due to substantial pain, bruising and swelling to various parts of her body” (at [4(a)]).  The nurse was sentenced to a good behaviour bond with conditions.  Initially the Board had sought a suspension of six months and the nurse a reprimand alone.  By the time of the hearing, the parties were agreed on a period of suspension for three months.  Notwithstanding that agreement, the Tribunal ordered suspension for one month.  Reference was made to Haasbrook, above (where no suspension was ordered) and it was said to be closest to the case before the Tribunal.  General deterrence was emphasised in ordering the suspension.
  2. [105]
    The Tribunal considers the assault on a child causing injury (irrespective of the purported purpose for it) and the circumstances leading to it renders this conduct more serious conduct than the instant case.
  3. [106]
    Augustin involved a nurse punching his wife in the shoulder.  He was convicted of common assault and placed on a good behaviour bond.  The Board submits there are points of distinction with the instant case by reason of co-operation with Ahpra; demonstrated sincere insight and deep remorse; prompt and voluntary engagement in education and training “with a focus on anger management and family violence”.   Of course, no weapon was involved in that case.
  4. [107]
    It is contended the depth of remorse and insight is greater than that displayed by LYS.[40]  That submission is rejected for the reasons earlier given.  The Tribunal considers the depth of remorse and insight in the instant case cannot reasonably be distinguished from that manifest in Augustin.

Conclusion

  1. [108]
    The Tribunal accepts that professional misconduct comprising convictions for family violence offences can, and very frequently does, result in a period of suspension.  Equally, the Tribunal accepts general deterrence is a powerful factor in reaching those conclusions.
  2. [109]
    However, the important consideration of general deterrence does not trump other important considerations.  Further, of course, there can be no invariable rule that suspension must result where the conduct is founded on convictions for offences of that type – such an approach fetters the Tribunal’s discretion which is exercised by reference to all factors considered relevant in a particular case.
  3. [110]
    The factors personal to LYS and the circumstances of the offending earlier outlined persuade the Tribunal that, in this particular case, a reprimand is the appropriate sanction.
  4. [111]
    In so concluding, earlier decisions emphasising the seriousness of a reprimand as a sanction should be referred to.  In Health Ombudsman v Gillespie,[41] for example, it was held by then-Deputy President Allen KC DCJ (at [21]):

A reprimand is a matter of public record affecting the reputation of a practitioner … [it] remains on the public Register until such time as the National Board determines that it is appropriate the reprimand by no longer so recorded.[42]

  1. [112]
    A reprimand, too, has an important role in general deterrence.  The professional members of this Tribunal agree with then-Deputy President Kingham DCJ (as her Honour then was) that a reprimand:

… would be viewed seriously by the professional’s colleagues, who could be expected to think less of the practitioner for it. The reprimand goes to their reputation as a practitioner. It could have significant implications for a practitioner’s career prospects.[43]

  1. [113]
    The Tribunal considers a reprimand, applicable to both Grounds, is the appropriate sanction in this case.

Orders

  1. In respect of the conduct of the practitioner as alleged in ground 1 of the referral, pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the practitioner has behaved in a way that constitutes professional misconduct.
  1. In respect of the conduct of the practitioner as alleged in ground 2 of the referral, pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the practitioner has behaved in a way that constitutes unprofessional conduct.
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the practitioner is reprimanded.
  3. No order as to costs.

Footnotes

[1]Health Practitioner Regulation National Law (Queensland) (‘National Law’) ss 193(1)(a)(i), 193B(2) and (3)(a)(i).

[2]  Ibid, s 5.

[3]  Ibid, ss 3, 3A and 4.

[4]  Police brief of evidence.

[5]  Ibid; Police statement of [ex-partner’s daughter].

[6]  Police brief of evidence.

[7]  National Law s 130.

[8]  Written submissions of the Board, [38].

[9]  Ibid, [7].

[10]  [2020] QCAT 1 (‘McGuiness’), [12].

[11]  [2020] QCAT 72 (‘Henson’).

[12]  [2024] QCAT 208 (‘Burling’).

[13]  [2016] QCAT 472 (‘Antley’).

[14]  Application or referral — disciplinary proceedings filed 14 July 2023 (‘Referral’), Notice of Allegations, [3(A)].

[15]  National Law s 5 (definition of ‘professional misconduct’) (emphasis in original).

[16]  Ibid, definition of ‘unprofessional conduct’.

[17]  Ibid.

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

[19]  [2018] NSWCATOD 177. 

[20]  [2020] QCAT 166 (‘HCG’).

[21]  [2011] QCAT 637, [29].

[22]  Written submissions of the Board, [30].  Reference is made to extracts from Statement 1.1; 1.2; Principle 4 and Elements 1.8 and 2.5.

[23]  The sentencing Magistrate said, for example: “…to break into someone’s house, arm yourself with a knife, and threaten to kill [sic “stab”], the range is a jail term”: Transcript of sentencing remarks, 28 May 2021, T2.15.

[24]  Written submissions of the Board, [26].

[25]  Ibid, citing Psychology Board of Australia v Griersmith (Review and Regulation) [2019] VCAT 52, [67].

[26]  Written submissions of the Board, [67].

[27]  See, e.g. Legal Services Commissioner v Madden (No 2) [2008] QCA 301; Medical Board of Australia v Dolar [2012] QCAT 271, [30]; National Law s 3A and 4.

[28]  See, e.g. Medical Board of Australia v POS (Review and Regulation) [2019] VCAT 1678 citing Medical Board of Australia v Jansz [2011] VCAT 1026, [362].

[29]Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545, [48].

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

[31]Medical Board of Australia v Grant [2012] QCAT 285.

[32]Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, [43].  A number of decisions are also cited in the Board’s written submissions at [43].

[33]  Written submissions on behalf of LYS, [11].

[34]  Report Dr WM [anonymised], Davaar Consultancy dated 11 March 2024, pp 4–5.

[35]  [2021] VCAT 876 (‘PYP’).

[36]  [2022] VCAT 375 (‘VQK’).

[37]  [2020] QCAT 394 (‘JTM’).

[38]  [2020] VCAT 157 (‘GMR’).

[39]  [2022] ACAT 54 (‘Augustin’).

[40]  Written submissions of the Board, [66].

[41]  [2021] QCAT 54.

[42]  See also, e.g. Medical Board of Australia v Grant [2012] QCAT 285 (‘Grant’), [49]; Health Ombudsman v Hardy [2018] QCAT 416, [41]; Medical Board of Australia v Jones [2012] QCAT 362, [14].

[43]Grant (n 42), [49].

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v LYS

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v LYS

  • MNC:

    [2024] QCAT 209

  • Court:

    QCAT

  • Judge(s):

    Member P J Murphy SC

  • Date:

    25 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
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 Care Complaints Commission v Haasbroek [2018] NSWCATOD 177
2 citations
Jump To
Cite 1 - [2018] NSWCATOD 177
Cite 2 - [2018] NSWCATOD 177
Health Ombudsman v Antley [2016] QCAT 472
2 citations
Jump To
Cite 1 - [2016] QCAT 472
Cite 2 - [2016] QCAT 472
Health Ombudsman v Barber [2017] QCAT 431
2 citations
Jump To
Cite 1 - [2017] QCAT 431
Cite 2 - [2017] QCAT 431
Health Ombudsman v Gillespie [2021] QCAT 54
2 citations
Jump To
Cite 1 - [2021] QCAT 54
Cite 2 - [2021] QCAT 54
Health Ombudsman v Hardy [2018] QCAT 416
2 citations
Jump To
Cite 1 - [2018] QCAT 416
Cite 2 - [2018] QCAT 416
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 JTM [2020] QCAT 394
2 citations
Jump To
Cite 1 - [2020] QCAT 394
Cite 2 - [2020] QCAT 394
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 Grant [2012] QCAT 285
3 citations
Jump To
Cite 1 - [2012] QCAT 285
Cite 2 - [2012] QCAT 285
Cite 3 - [2012] QCAT 285
Medical Board of Australia v Griffiths [2017] VCAT 822
2 citations
Jump To
Cite 1 - [2017] VCAT 822
Cite 2 - [2017] VCAT 822
Medical Board of Australia v Jansz [2011] VCAT 1026
2 citations
Jump To
Cite 1 - [2011] VCAT 1026
Cite 2 - [2011] VCAT 1026
Medical Board of Australia v Jones [2012] QCAT 362
2 citations
Jump To
Cite 1 - [2012] QCAT 362
Cite 2 - [2012] QCAT 362
Medical Board of Australia v POS [2019] VCAT 1678
2 citations
Jump To
Cite 1 - [2019] VCAT 1678
Cite 2 - [2019] VCAT 1678
Medical Board of Australia v PYP [2021] VCAT 876
2 citations
Jump To
Cite 1 - [2021] VCAT 876
Cite 2 - [2021] VCAT 876
Nursing and Midwifery Board of Australia v Augustin (2022) ACATNT 54
2 citations
Jump To
Cite 1 - (2022) ACATNT 54
Cite 2 - (2022) ACATNT 54
Nursing and Midwifery Board of Australia v Burling [2024] QCAT 208
2 citations
Jump To
Cite 1 - [2024] QCAT 208
Cite 2 - [2024] QCAT 208
Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157
2 citations
Jump To
Cite 1 - [2020] VCAT 157
Cite 2 - [2020] VCAT 157
Nursing and Midwifery Board of Australia v VQK [2022] VCAT 375
2 citations
Jump To
Cite 1 - [2022] VCAT 375
Cite 2 - [2022] VCAT 375
Pharmacy Board of Australia v Thomas [2011] QCAT 637
2 citations
Jump To
Cite 1 - [2011] QCAT 637
Cite 2 - [2011] QCAT 637
Psychology Board of Australia v Griersmith (Review and Regulation) [2019] VCAT 52
2 citations
Jump To
Cite 1 - [2019] VCAT 52
Cite 2 - [2019] VCAT 52

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v APR [2025] QCAT 1031 citation
Nursing and Midwifery Board of Australia v Carter [2025] QCAT 462 citations
1

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