Nursing and Midwifery Board of Australia v YBF
[2024] QCAT 536
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v YBF[2024] QCAT 536
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Nursing and Midwifery Board of Australia v YBF[2024] QCAT 536
Nursing and Midwifery Board of Australia v YBF[2024] QCAT 536
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v YBF [2024] QCAT 536 |
PARTIES: | nursing and midwifery board of australia (applicant) v YBF (respondent) |
APPLICATION NO/S: | OCR104-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 15 November 2024 (decision) 12 February 2025 (reasons) |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Rinaudo AM Assisted by: Dr J Jauncey-Cooke Mrs K Thomson Mr S Lewis |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
THE TRIBUNAL ORDERS THAT:
is prohibited to the extent that it could identify or lead to the identification of the respondent and the patients of the respondent save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent misappropriated large quantities of schedule 8 substances from her workplace – where the respondent made false entries in drug registers to conceal her theft – where the respondent pleaded to and was convicted of stealing as a servant – where the respondent failed to notify the applicant Board of a relevant event under s 130 of the National Law – where the respondent has been disengaged from the proceedings – whether the respondent’s registration should be cancelled Criminal Code Act 1899 (Qld) 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 Health Ombudsman v Agnola [2019] QCAT 193 Health Ombudsman v Costello [2016] QCAT 117 Health Ombudsman v Jolley [2019] QCAT 173 Health Ombudsman v NLM (No 2) [2019] QCAT 366 Medical Board of Australia v Griffiths [2017] VCAT 822 Nursing and Midwifery Board of Australia v YBF [2023] QCAT 460 Victorian Legal Services Commissioner v John Mingos [2016] VCAT 918 |
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
Background
- [1]At all material times prior to 12 June 2021, the respondent was employed as a registered nurse at an aged care group facility in Sandbrook, Brisbane, (‘Sandbrook’).
- [2]On or about 10 June 2021, the Office of the Health Ombudsman (‘OHO’) received a mandatory notification pursuant to ss 140 and 142(1) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) by the then Facility Manager of Sandbrook. The notification alleged that Sandbrook had CCTV footage of the respondent misappropriating large quantities of oxycodone, a schedule 8 substance, and falsifying records while performing duties.
- [3]On 1 July 2021, the OHO referred the matter to Ahpra for the Nursing and Midwifery Board of Australia ('Board') to manage. On 29 July 2021, the Board decided to take immediate action by suspending the respondent’s registration. Her registration remains suspended.
- [4]By way of letter dated 23 January 2023, the Board provided the respondent with notice of its decision to refer the matter to the Tribunal. On 13 April 2023, the Board filed a referral for disciplinary proceedings with the Tribunal. The Board filed an amended referral on 24 July 2024.
- [5]By way of amended referral, the Board referred four allegations to the Tribunal:
- allegation one alleges that on various dates between 10 February 2021 and 6 June 2021, the respondent misappropriated from her employer, Sandbrook, approximately 500 tablets of medication; primarily Endone and Targin which are schedule 8 substances;
- allegation two alleges that on various dates between 10 February 2021 and 6 June 2021, for the purpose of misappropriating the schedule 8 medications referred to in allegation one, the respondent made false entries in Sandbrook’s Drugs of Dependence Register, namely that each of the medications she misappropriated had been ‘returned to pharmacy’;
- allegation three is concerned with the respondent pleading guilty to and being convicted of one count of stealing by clerks and servants contrary to s 398(6) of the Criminal Code Act 1899 (Qld). No conviction was recorded;
- allegation four is concerned with the respondent’s failure to notify the Board of a ‘relevant event’, that is being charged with an offence punishable by more than 12 months imprisonment, under s 130 of the National Law.
The respondent’s disengagement
- [6]The respondent has been disengaged in these proceedings since the outset and has not filed a response to the allegations.
Interlocutory decision made on 14 December 2023
- [7]By way of submissions filed with the Tribunal by the Board on 29 November 2023, the Board sought that it be exempted from the requirement, under s 37(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to give a copy of the referral to the respondent. It further sought that the application be determined in the absence of the respondent pursuant to s 93(2) of the QCAT Act. The Tribunal determined these applications on the papers.[1]
- [8]On 14 December 2023, the Tribunal ordered that the Board is exempted from the s 37(2)(a) requirement[2] and adjourned the application under s 93(2).[3] In short, the latter was adjourned because the matter was in its initial stage and her Honour Judge Dann, the Deputy President of the Tribunal, noted the possibility that the respondent would have engaged once it was apparent to her that the Board was proceeding with the referral.[4] The Tribunal directed the Board to provide its filed material by email to the email address for the respondent and to send an SMS to the respondent advising of the filing and emailing of that material so that, at any time, the respondent can indicate a willingness to be involved.[5]
Present decision
- [9]By way of its submissions dated 13 September 2024, the Board submits that given the practical effect of the order under s 37(4) is that the proceeding has continued without notice to the respondent, it is also appropriate to make an order under s 93(2) that the Tribunal hear and decide the matter in the respondent’s absence. The Board relies on ss 93(1)(b) and (2) in this regard.
- [10]On 14 October 2024, the associate to the Deputy President emailed the respondent outlining the dates which the Board had filed material in the Tribunal and provided copies by email to the respondent. The associate further noted that the Tribunal had not received any indication to date from the respondent that she wished to be involved in this proceeding and that the proceeding would continue regardless of whether she chose to engage. Lastly, the associate invited the respondent to advise the Tribunal and the Board’s solicitors whether she intended to make submissions at an oral hearing by no later than 18 October 2024, failing which the matter will be listed for hearing and determination on the papers. To date, the Tribunal and the Board’s solicitors have not received a response.
- [11]
The Board’s submissions
Findings and orders sought
- [12]The Board seeks the following findings and orders:
- pursuant to s 196(1)(b)(iii) of the National Law, in respect of grounds 1, 2 and 3 of the referral, the respondent has behaved in a way that constitutes professional misconduct;
- pursuant to s 196(1)(b)(ii) of the National Law, in respect of ground 4 of the referral, the respondent has behaved in a way that constitutes unprofessional conduct;
- pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded;
- pursuant to s 196(2)(e) of the National Law, the respondent’s registration is cancelled; and
- there be no order as to costs.
What is the characterisation of the conduct?
- [13]The Board submits the conduct the subject of allegations one, two and three constitute professional misconduct because:
- it involved deliberate acts of dishonesty in stealing medication and deception in attempting to conceal her actions;
- it concerned powerful and dangerous medication with addictive qualities;
- it involved a high quantity of those medications (approximately 500 tablets total);
- it was reasonably prolonged in that it occurred over about four months;
- it constituted a breach of trust placed in nurses to manage dangerous medication; and
- a conclusion of professional misconduct is supported by the comparable authorities brought to the Tribunal’s attention.
- [14]The Board submits allegation 4 constitutes ‘unprofessional conduct’ because there is no evidence that the respondent withheld the s 130 notice with the intention to deceive the Board or conceal the criminal charges; and she had admitted the conduct to her employer and Ahpra shortly after being charged, as well as to the psychiatrist who performed the health assessment that she had been charged and intended to plead guilty.
Discussion and sanction
- [15]
- [16]In its submissions, the Board sets out a summary of factors that the Tribunal may consider when determining sanction. The Tribunal notes and accepts that summary. The factors include:
- the nature and seriousness of the practitioner’s conduct;[10]
- insight and remorse shown by the practitioner;[11]
- the need for specific or general deterrence;[12]
- any evidence of steps taken by the practitioner to mitigate the risk of reoccurrence of the conduct – which is relevant to both insight and the Tribunal’s assessment of future risk;[13]
- mitigating factors such as evidence of matters which may give context to the conduct, for example mental health issues;[14]
- other matters, including past disciplinary history, police history, character evidence, periods of preclusion-non-practise, and cooperation during disciplinary proceedings.[15]
- [17]The Board has submitted that the Tribunal should characterise allegations 1, 2 and 3 as professional misconduct because it involved deliberate acts of dishonesty in stealing medication and deception in attempting to conceal her actions. The conduct concerned powerful and dangerous medication with addictive qualities. It involved a high quantity of those medications, around 500 tablets total. It was reasonably prolonged in that it occurred over about four months. It constituted a breach of trust placed in nurses to manage dangerous medication, and that conclusion is supported by the comparable authorities referred to. As to allegation 4, the Board submits that the conduct should be characterised as unprofessional conduct.
- [18]The Tribunal in this case is satisfied that the conduct is serious. Having regard to the lack of communication from the respondent, it is difficult for the Tribunal to assess whether the respondent is remorseful or has learnt by her actions. However, it is noted that the Board acknowledges that the offending occurred at a time when the respondent was experiencing difficult personal circumstances including pregnancy loss, a domestically violent and abusive relationship and isolation from her daughter and immediate family.
- [19]These are matters which featured in the decision of the magistrate, who placed her on a good behaviour bond of 12 months with a recognisance of $1,000. She made early admissions to the allegations, cooperated with the Queensland Police Service and pleaded guilty to the stealing offences, which does tend to signify her insight and remorse in that she has taken responsibility for her actions.
- [20]The respondent was initially cooperative with Ahpra, although has not engaged in the proceedings. She has no prior notification history, and her former employer’s view was that she was a very good practitioner. Her registration has been suspended since 29 July 2021, and the misappropriation of the medication did not appear to have any medical impact on patients.
- [21]The Tribunal has had regard to the comparable decisions provided, and although they are helpful, matters of this type must be determined on the facts relating to the case. However, the Tribunal is satisfied that the comparable decisions support that the sanction to be imposed is well within range.
- [22]In the circumstances, the Tribunal is satisfied that the respondent is not a fit and proper person to be registered as a health practitioner, and her registration should be cancelled. Having regard to the need for protection of the public, cancellation appears to the Tribunal to be appropriate as it will require the respondent to demonstrate to the Board that she is a fit and proper person on any registration application.
- [23]The Board has noted, and the Tribunal is satisfied, that deterrence does not require a further period of preclusion given the mitigating factors.
- [24]The sanction, therefore, is:
- pursuant to section 196(1)(b)(iii) of the National Law in respect of grounds 1, 2 and 3, the respondent has behaved in way that constitutes professional misconduct;
- pursuant to section 196(1)(b)(ii) of the National Law in respect of ground 4, the respondent has behaved in a way that constitutes unprofessional conduct;
- pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded;
- pursuant to section 196(2)(e) of the National Law, the respondent’s registration is cancelled; and
- no order as to costs.
Addendum
- [25]These reasons have been amended to reflect the basis for anonymising the respondent and a corresponding order has been made.
- [26]This disciplinary referral was heard on 15 November 2024 and the Tribunal’s final decision was given that day. The Tribunal’s written reasons were delivered and distributed to the parties on 12 February 2025.
- [27]On 28 March 2025, the Board’s solicitors emailed the Tribunal requesting that ‘the Tribunal amend its decision to include reasons for the anonymisation [of the respondent] and an order to the effect’. The Board’s solicitors noted that it does not object to the decision being published in the form that anonymised the respondent.
Does the Tribunal have power to make a non-publication order after the finalisation of the matter?
- [28]In short, the Tribunal is not constrained in making orders on its own initiative despite the proceedings being finalised.[16]
- [29]Following the reasoning of her Honour, Judge Dann, Deputy President of the Tribunal:[17]
… section 66(3) of the QCAT Act … empowers the Tribunal to act on its own initiative. In the event that the Tribunal determines an order is necessary, the matter having come to the Tribunal’s attention [by way of email from the Board’s solicitors dated 28 March 2025], it is consistent with s 3 of the QCAT Act that the Tribunal would act in the exercise of its own initiative.
Non-publication order
- [30]The Tribunal notes the initial referral filed by the Board on 13 April 2023 alleged that the respondent had an impairment, namely: that on or about 10 September 2021, Dr MacDonald psychiatrist, diagnosed the respondent with opioid abuse or opioid abuse disorder in recent emission; and adjustment disorder with disturbance of conduct, or adjustment disorder unspecified in remission.
- [31]The Board then filed an amended referral on 24 July 2024 that entirely replaced the initial referral. The Board did not push the impairment allegation at all in the amended referral.
- [32]The Health Ombudsman Act 2013 (Qld) (‘HO Act’) applies to this proceeding by virtue of s 10 of that Act. Section 98(1) of the HO Act provides that a hearing for an impairment matter relating to a health practitioner is not open to the public unless otherwise ordered.
- [33]Additionally, s 273 of the HO Act provides that the Health Ombudsman must not publish information that it considers would be inappropriate to publish and refers to an impairment of a health practitioner as an example.
- [34]The Tribunal is not satisfied that, just because the Board removed the impairment allegation from the amended referral, the respondent should be identified and the Tribunal’s file should otherwise be open for inspection in circumstances where an impairment was initially alleged and is or was intertwined in her conduct.
- [35]Her Honour Judge Sheridan, then Deputy President of the Tribunal, said in Health Ombudsman v NLM (No 2) [2019] QCAT 366 [10] that:
[ss 98 and 273 of the HO Act] indicate the importance which the legislature attaches to the need for privacy in matters relating to the impairment of practitioners. There [are] good social policy reasons for that approach which justify a restriction to openness in the administration of justice.
- [36]Her Honour continued at [12] that, in circumstances where the practitioner’s impairment is or was intertwined in the misconduct:
in order to maintain the privacy of the impairment material it is necessary to de-identify the Tribunal’s decision and reasons, and to otherwise preserve the privacy of the record of proceedings of the Tribunal.
- [37]The Tribunal adopts the reasoning of her Honour Judge Sheridan in extending, on its own volition, the non-publication order made on 25 May 2023 to protect the identity of the respondent in the present case.
Footnotes
[1]Nursing and Midwifery Board of Australia v YBF [2023] QCAT 460 (‘YBF’).
[2]Pursuant to s 37(4)(a) of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’).
[3]YBF (n 1).
[4]Ibid [20].
[5]Ibid [21].
[6]QCAT Act (n 2) s 93(b).
[7]Ibid s 93(2).
[8]Health Practitioner Regulation National Law (Queensland) s 3A(1)(a)-(b).
[9]Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545.
[10]Victorian Legal Services Commissioner v John Mingos [2016] VCAT 918, [25].
[11]Health Ombudsman v Jolley [2019] QCAT 173, [78]; Medical Board of Australia v Griffiths [2017] VCAT 822, [45].
[12]Craig v Medical Board of South Australia (2001) 79 SASR 545, 553-555.
[13]Ibid.
[14]Health Ombudsman v Costello [2016] QCAT 117, [35].
[15]Health Ombudsman v Agnola [2019] QCAT 193, [12].
[16]Cf where a party applies for a non-publication order after a final decision has been made: YWG v Medical Board of Australia [2023] QCAT 93 [12]-[16].
[17]Ibid [17].