Nursing and Midwifery Board of Australia v Reed
[2024] QCAT 380
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- Nursing and Midwifery Board of Australia v Reed[2024] QCAT 380
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Nursing and Midwifery Board of Australia v Reed[2024] QCAT 380
Nursing and Midwifery Board of Australia v Reed[2024] QCAT 380
[2024] QCAT 380 | |
Queensland Civil and Administrative Tribunal | |
Dick SC, Judicial Member | |
Assisted by: | |
Ms L Dyer Ms F Banwell Ms K Thomson | |
OCR 242 of 2023 | |
NURSING AND MIDWIFERY BOARD OF AUSTRALIA | |
Applicant | |
v | |
ALISHA ANN REED | |
Respondent | |
BRISBANE | |
Monday, 19 August 2024 | |
Reasons for Decision | |
- [1]Judicial Member: This is a referral from the Nursing and Midwifery Board of Australia regarding the conduct of Alisha Ann Reed, the practitioner. The Board originally referred three grounds to the Tribunal but now indicates it only intends to proceed on two of those grounds[1] and I will speak to those in a moment. The conduct relates to, significantly, a criminal conviction.
The conduct forming the basis of the referral
- [2]Ground 1 is an allegation that between on or about 27 December 2019 and 15 June 2020, the practitioner engaged in conduct that led to her being convicted on or about 19 January 2022, on a plea of guilty, of attempting to pervert the course of justice.
- [3]Ground 2(i) relates to an allegation that the practitioner failed to give notice to the Board within seven days after becoming aware a “relevant event” had occurred in relation to herself. That relevant event offence under the Health Practitioner Regulation National Law (Queensland) (National Law) relates to the fact that the practitioner had been charged with an offence punishable by 12 months’ imprisonment or more and failed to give notice within the required time. I will say more about that conduct in a moment.
- [4]The background to the criminal charge and conviction was that a certain person had been taken into custody and charged with possessing dangerous drugs. Another person (Person B), who was the practitioner’s former partner and an associate of the first person, arranged, by engaging in various phone calls and text messages and with the practitioner as the middle person, that Person B was to provide a false statutory declaration claiming he was responsible for the presence of the drugs.
- [5]Much of the behaviour was covered by recordings of phone calls from the prison and eventually the practitioner was charged. She pleaded guilty early. In the sentencing remarks, Jackson KC DCJ commented that, “you felt, really, you could not say ‘no’ out of fear for your own safety”. He went on to say that “there was no violence or any threats or anything of that kind”. I take that to mean that his Honour accepted that there was fear but there was no direct testimony or evidence emanating from the phone calls of threats of violence. I think that is a slightly different way of approaching it than in the submissions by the Board.
- [6]The practitioner has explained, and some of this was mentioned at the sentencing hearing, that she was 15 years old when she met Person B, who was 24 years old at that time. She was in a vulnerable position because her mother had left the family when she was young and her father was struggling due to mental health which, in other parts of the documentation is referred to as post-traumatic stress disorder.
- [7]She was then homeless and during that time, she formed a relationship with Person B. She describes the relationship as quickly becoming very controlling and manipulative.
- [8]She says she was cut off from her family and friends, dropped out of school and fell pregnant with her first child when she was 17. She describes Person B as controlling every aspect of her life, really describing what is now recognised as coercive control.
- [9]She says that after she left Person B, he continued to threaten and stalk her. She took out a temporary domestic violence order but did not proceed with it because she was too afraid.
- [10]She points out, and the Tribunal accepts, that at no time did she plan, with any premeditation, the offences and I noted during the course of discussion that the police brief — which was obviously prepared from the recordings of the calls — refers to Person B instructing her to do things on a number of occasions. It was a submission that there was a discussion that she would gain a benefit from obtaining money towards her nursing degree but she has explained, and it is accepted, that she immediately declined that offer, so there was no benefit to her other than feeling safe.
- [11]She has expressed remorse for her actions both by her early plea of guilty and her cooperation with this investigation. She has demonstrated today an understanding that she needs to be aware of the mental hold that Person B has on her and she says she is finally beginning to heal and, with the help of family and friends, be able to at least understand the triggers that that sort of behaviour leads to. She had no criminal history up to this point and is now 45 years of age. She has no disciplinary history.
Characterisation
- [12]In the Board’s submissions, some comparable cases were pointed to, not entirely comparable because it was not possible to find very similar cases to this. The comparable cases mentioned have not been of much assistance. However, counsel today referred to Nursing and Midwifery Board of Australia v Roe[2] and I took it to mean that the point of giving us that case was the discussion between cancellation of registration and suspension of registration because in other ways that matter was objectively much more serious because it involved not only actually giving false testimony and preparing false testimony for drug offences and a domestic violence offence.
- [13]I note that under the heading, Cancellation of Registration, it says:
A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise.
- [14]It would be very hard to come to that decision here because the practitioner has been practising in the ensuing four years without any repeat of the behaviour and, as I pointed out, there was no prior behaviour that would point to that. That is not to say that her behaviour in being involved over a long period of time in this plan, as I will call it, was not objectively very serious behaviour, not only because, as his Honour pointed out, it strikes at the heart of justice, but because it was prolonged and there was time for the realisation of the characterisation of conduct to hit home.
- [15]That is also not to say that the Tribunal considers personal deterrence in this case to be the primary moving feature.
- [16]The practitioner accepts that her behaviour in respect of ground 1 is professional misconduct and the Tribunal is of the view that it fits comfortably within the definition under the National Law.[3]
- [17]Ground 2(i) is properly described as unprofessional conduct within the meaning of that definition under the National Law.[4]
Sanction
- [18]There is also an aspect of general deterrence which makes it a primary consideration but, as has been pointed out in other cases, a reprimand is not a trivial penalty.[5] In this case, together with other conditions, the Tribunal is of the view that a reprimand is a sufficient sanction to deal with the aspect of general deterrence.
- [19]The next matter is of course that these proceedings are not punitive in nature. They are primarily concerned with the protection of the public.[6] These offences did not occur in the practitioner’s direct professional practice but her written submissions to the Tribunal indicates that she has understood that it does not necessarily need to be concerned with professional practice. Any serious criminal offence, even if it does not occur during the practitioner’s work, may be considered to amount to professional misconduct. In any event, that is accepted here.
- [20]The practitioner has explained the conduct in ground 2(i) in terms of documents she sent where she was contacting AHPRA and it appears from those supporting documents, that there was some misunderstanding and ignorance on her part — ignorance of the law of course is no excuse, but it somewhat mitigates the behaviour.
- [21]If the Tribunal determines that the practitioner has behaved in a way that constitutes professional misconduct or unprofessional conduct, the Tribunal may make an order in a number of ways. Pleasingly here, after some discussion, the parties have agreed on the form of order which the Tribunal makes. It is still for the Tribunal in its own independent determination to decide what the conduct is, how it should be categorised and what sanction should be imposed. Usually if the parties agree, it would be unusual and the Tribunal would not interfere without justification.[7]
- [22]In this case, the Tribunal really instigated the discussions and the Tribunal is satisfied with the proposed conditions.
- [23]Therefore, it is the decision of the Tribunal that:
- The conduct the subject of ground 1 constitutes professional misconduct under limbs (a) and (c) of the definition set out in section 5 of the Health Practitioner Regulation National Law (Queensland).
- The conduct the subject of ground 2(i) constitutes unprofessional conduct under limb (a) of the definition set out in section 5 of the Health Practitioner Regulation National Law (Queensland).
- The respondent is reprimanded.
- The Tribunal imposes conditions on the respondent’s registration in terms of Annexure A to this decision.
- The review period for the conditions imposed by this decision is 12 months from the date of the Tribunal’s order.
- Part 7, Division 11, subdivision 2 of the National Law applies to these conditions.
Annexure A — Schedule of Conditions
Within 21 days’ notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:
- a.within seven days of the commencement of practice at each subsequent place of practice, and
- b.within seven days of each and every notice of any subsequent alteration of these conditions.
The Practitioner must undertake and successfully complete a program of education, approved by the Nursing and Midwifery Board of Australia and including a reflective practice report, in relation to ethical decision-making and professional responsibilities.
Within 28 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure:
- a.the nomination includes a copy of the curriculum of the education
- b.the education consists of a minimum number of 10 hours including ethical decision-making and professional responsibilities.
The Practitioner must complete the education within 6 months of the notice of the Board’s approval of the education.
Within 28 days of the completion of the education, the Practitioner must provide to Ahpra:
- a.Evidence of successful completion of the education.
- b.A reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner’s practice.
All costs associated with compliance with these conditions are at the Practitioner's own expense.
Footnotes
[1] Being ground 1 and ground 2(i) of the referral.
[2] [2018] WASAT 92; 95 SR (WA) 241 (‘Roe’).
[3] See National Law s 5 (definition of ‘professional misconduct’).
[4] See National Law s 5 (definition of ‘unprofessional conduct’).
[5] See, e.g. Psychology Board of Australia v Cameron [2015] QCAT 227, [25].
[6] Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545, [41].
[7] See, e.g. Health Ombudsman v Gillespie [2021] QCAT 54.