Nursing & Midwifery Board of Australia v Gutierrez
[2024] QCAT 465
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- Nursing & Midwifery Board of Australia v Gutierrez[2024] QCAT 465
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Nursing & Midwifery Board of Australia v Gutierrez[2024] QCAT 465
Nursing & Midwifery Board of Australia v Gutierrez[2024] QCAT 465
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing & Midwifery Board of Australia v Gutierrez [2024] QCAT 465 |
PARTIES: | nursing & midwifery board of australia (applicant) v angelika gutierrez (respondent) |
APPLICATION NO/S: | OCR051-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 September 2024 (ex tempore) |
HEARING DATE: | 23 September 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Dick SC Assisted by: Dr J Forrester Mr M Halliday Mr J McNab |
ORDERS: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCPLINARY PROCEEDINGS – where the respondent pleaded guilty to several drug charges – where the respondent failed to notify Ahpra of a ‘relevant event’ within the required period of time – whether the Fleischmann principle relates to suspended sentences – what is the appropriate sanction – where an application for a non-publication order is dismissed Health Practitioner Regulation National Law (Queensland) Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87 Health Ombudsman v ANP [2022] QCAT 6 Health Ombudsman v ICN [2024] QCAT 246 Health Ombudsman v OOD [2021] QCAT 388 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Doyle instructed by Minter Ellison |
Respondent: | Self-represented |
REASONS FOR DECISION
Non-publication order
- [1]Proceedings in this Tribunal are open to the public as the default position. An order for non-publication can be made, in terms of this case, for example, if it is in the interests of justice.
- [2]The Tribunal has considered a number of factors. We have the application and, in support, a letter from Mr Rundell, a psychologist. Mr Rundell requests that we consider a non-publication order and says that the public dissemination of information regarding the respondent’s situation would be detrimental to her ongoing recovery, and that a non-publication order would be a crucial step in protecting her mental health.
- [3]The Tribunal finds this is at odds with other submissions that have been made on behalf of the respondent, and that she would like to be an advocate to other people who might be considering her situation. In addition, the matter is already on the public record, because the District Court sentence would be available online. In those circumstances, the Tribunal is not satisfied that this is a case where the interests of justice would require the Tribunal to move away from the default position, and the application for non-publication is dismissed.
Judgment
- [4]On 12 December 2023, the applicant referred this matter to the Tribunal, alleging the respondent has engaged in professional misconduct. At all relevant times the applicant was a registered nurse. The applicant has not argued that the conduct which will shortly be described amounted to professional misconduct.
- [5]There are a number of determinations available to the Tribunal which are set out in the submissions, but, relevantly, the Tribunal may make one or more of the following determinations:
- that the respondent be cautioned or reprimanded;
- that conditions be imposed upon her registration;
- a fine;
- a suspension of her registration for a specified period; or
- a cancellation of her registration.
- [6]Here, the applicant seeks a suspension of the respondent’s registration for a period of six months, a reprimand and conditions which have been set out and which I will deal with shortly.
- [7]The background of the matter is that on 22 February 2022, the respondent was stopped in her vehicle by police, who found cocaine, two spoons, a digital scale and a notebook. She was charged. Less than a month later, police searched her residence and found steroids. She was charged, and in early April, pleaded guilty to possession of the steroids. She was fined $500 and no conviction was recorded. On 30 May 2022, the applicant applied to review her nursing registration and declared there had been no change to her criminal history.
- [8]In October 2022, she was charged with 15 counts of supplying a dangerous drug. The charges were evidenced by the notebook found in February. On 1 June 2023, the applicant pleaded guilty to the possession charges from February and the supply charges. She was sentenced to probation and various terms of imprisonment, the longest being 15 months. The prison terms were suspended for two years. The operational period will lapse on 1 June 2025. The respondent accepts the drug convictions amount to professional misconduct.
- [9]In relation to her failure to advise Ahpra within seven days of being charged or convicted of those charges, as she was required to do, she says she did advise Ahpra, but outside the mandatory timeframe. The parties agree this behaviour should be categorised as unprofessional conduct. The Tribunal agrees. As to the misleading information in her renewal application, she accepts this conduct amounts to professional misconduct. It is, of course, a matter for the Tribunal to determine independently, but the Tribunal accepts those various categorisations.
- [10]In deciding on a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective and not punitive. The Tribunal will consider specific and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse by the respondent are also relevant. It should be said that a reprimand is not a trivial offence and stands as denunciation of the respondent’s professional misconduct and should serve to deter others who may consider engaging in similar conduct.
- [11]There are conditions proposed here which would mitigate the risk posed to the public by her returning to work after her suspension. The Tribunal is of the opinion that some of the conditions need to be varied to a degree and are about ensuring her abstinence from drug use for a reviewable period.
- [12]There are significant mitigating factors here. The respondent cooperated with the criminal investigations and pleaded guilty. She has no prior disciplinary history, and the only criminal history is the matter in the Magistrates Court relating to the steroids. She has attended counselling and completed a drug counselling program with Lives Lived Well, and that has been evidenced by material before the Tribunal. For some nine months, she attended intensive drug testing and returned negative results. Those drug tests she paid for herself, and they were, especially in relation to the hair analysis tests, very expensive.
- [13]Her offending was not directly connected to her practise as a nurse, and that is something she says on a number of occasions, and it did not impact specifically on her patients, but she has to understand that the offending itself affected the reputation of the profession. She has undertaken education and training, and has commenced a Master of Business Administration, and is expected to finish that in December this year. She has been seeing a psychologist and continues do so and does not object to a condition that she see that psychologist for at least six months.
- [14]She has expressed remorse and shown insight into her conduct by working to rehabilitate and treat her drug addiction problem. She has the support of the community, as is evidenced by a huge number of references, each one of whom speaks about knowing about the charges. Further, very importantly for the Tribunal, she was suspended by the Nursing and Midwifery Board of Australia (‘Board’) on 12 July 2023, which means that, at this stage, she has been suspended for some 14 months. During her suspension, she has been under considerable financial pressure. The financial pressure, as well as other pressures, has contributed to a breakdown of a relationship. She was young at the time of the offences, about 24 years of age.
- [15]There has been a discussion about what has been called the Fleischmann principle, which refers to the case of Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann (‘Fleischmann’).[1] The general idea behind the Fleischmann principle is that where someone is the subject of a sentence that is extant and has not been fully completed, it would be incongruous for them to be allowed to practise again until the remainder of the sentence. It has, however, been observed that this is a general proposition and can be displaced, if to do other than displace it would lead to an injustice or a punitive result.
- [16]The matter of Health Ombudsman v OOD (‘OOD’)[2] was followed by Health Ombudsman v ANP (‘ANP’).[3] In ANP, Judge McGill said in obiter that there was a difference between a suspended sentence and parole. He did not expand on why, and it may simply be that there are more conditions with parole. That is not to say that there is not one significant condition with a suspended sentence, and that is that a breach makes a person liable to return to serve all or part of the sentence formally imposed. At this stage, the respondent is getting closer to the full operational period, and if there were to be a breach, depending on the nature of the breach, she may not necessarily be ordered to go into custody. There are other options, such as extending the operational period.
- [17]So having made the point that there has been a discussion about whether Fleischmann relates to suspended sentences, I have formed the view that it is, and it may simply be that as His Honour Judicial Member Reid said in Health Ombudsman v ICN (‘ICN’),[4] it is easier to digress from that in the case of a suspended sentence, probably because there are less conditions applying.
- [18]In the absence of any guideline cases, The Tribunal is of the view that the 14-months during which the applicant has been suspended satisfies what is expected of the Tribunal in terms of general deterrence and the upkeeping of public confidence in the system. However, that is not to say the Tribunal thinks that there should be no other conditions attached.
- [19]Then when I turn to the proposed conditions, the Tribunal is of the view that some of the originally suggested conditions are more onerous than is necessary, and I am not using that in a sense that you would for an immediate registration order; it is a looser term of phrase than that. The Tribunal is of the view that the hair analysis is extremely expensive and unnecessary for ensuring that she remains drug-free but is happy that she should commence random urine drug sampling, to be performed three-monthly, and the other conditions imposed about the practitioner providing to Ahpra confirmation etcetera.
- [20]We had originally thought that attending treating practitioners might not be necessary. We have changed that to say, ‘the practitioner must undertake treatment with Terrence Rundell or another suitably qualified person whom he recommends’. Then the condition about ‘notice of imposition of these conditions to Ahpra with the name of whoever is treating her’, so that if it changes from Terrence Rundell, the respondent is to tell Ahpra the name of the new practitioner. There will be a review of those conditions about the psychologist within six months to see if they are still necessary.
- [21]We have not changed the text on the public register section of the conditions. So essentially, we have taken out the frequency and the hair analysis. As I say, we are satisfied that a reprimand and those conditions, together with the fact that she has been suspended, not effectively, but actually, for a period of 14 months, and that the Board does not insist that she be suspended until the sentence in its entirety (i.e., the whole operational period) be necessary, and that the order that the Tribunal makes are these:
- The application for miscellaneous matters filed 23 September 2024 is dismissed.
- In respect of grounds 1, 2 and 4 of the referral, pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
- In respect of ground 3 of the referral, pursuant to section 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unprofessional conduct.
- Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
- Pursuant to 196(2)(b) of the Health Practitioner Regulation National Law (Queensland), conditions are imposed on the respondent’s registration in the form of Annexure A to this decision.
- Pursuant to section 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions imposed by this decision is six (6) months.
- Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to these conditions.
- No order as to costs.