Nursing and Midwifery Board of Australia v Dunjey
[2024] QCAT 96
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v Dunjey[2024] QCAT 96
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Nursing and Midwifery Board of Australia v Dunjey[2024] QCAT 96
Nursing and Midwifery Board of Australia v Dunjey[2024] QCAT 96
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v Dunjey [2024] QCAT 96 |
PARTIES: | Nursing and midwifery board of australia (applicant) v Nicole Dunjey (respondent) |
APPLICATION NO/S: | OCR332-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 8 February 2024 (viva voce) |
HEARING DATE: | 21 November 2023 & 19 January 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Richard Jones |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the applicant Board applied to the Tribunal seeking disciplinary findings and orders against the respondent nurse – where the applicant alleged that the respondent committed professional misconduct having been convicted of fraud against the Commonwealth – where the offending occurred before the respondent was registered – where the applicant alleged that the practitioner did not declare that she had been charged with and had pleaded guilty to a charge on indictment of fraud against the Commonwealth – where the Board alleged that the respondent improperly obtained registration by providing false or misleading information to the Board – where the Board submitted that the appropriate sanction consists of a reprimand, a suspension from practice, and the imposition of education conditions – whether conduct that occurred prior to registration can constitute professional misconduct – whether the respondent committed professional misconduct – whether the respondent improperly obtained registration as an enrolled nurse – whether a reprimand is appropriate – whether a suspension from practice is appropriate – whether education conditions are appropriate INTERPRETATION – GENERAL MATTERS – where the Health Practitioner Regulation National Law provides that ‘professional misconduct, of a registered health practitioner, includes…’ – where the statute is to be interpreted in a way that will best achieve the purpose of the Act – where the Tribunal has been pointed to extrinsic material – whether a registered health practitioner can be found to have engaged in professional misconduct as a result of conduct that occurred prior to registration ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks that the respondent’s registration as an enrolled nurse be suspended – where the Tribunal queried whether it has the power to suspend a suspension imposed under the Health Practitioner Regulation National Law as a power anciliary to the primary power to suspend – where no such express power exists – where it is unnecessary to determine whether the Tribunal has such ancillary power Acts Interpretation Act 1954 (Qld) ss 14A, 14B Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) ss 241, 247, 250 Health Practitioner Regulation National Law (Queensland) ss 5, 138, 139, 196 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 114 Dental Board of Australia v Dr Ho (Review and Regulation) [2019] VCAT 467 Health Ombudsman v Armstrong [2018] QCAT 382 Health Ombudsman v Lemon [2020] QCAT 266 Health Ombudsman v Russell [2021] QCAT 188 Medical Board of Australia v Jonsson [2017] QCAT 336 Medical Board of Australia v Kyaw [2016] QCAT 34 Medical Board of Australia v Putha [2014] QCAT 159 Medical Board of Australia v Waldron [2017] QCAT 443 Nursing and Midwifery Board of Australia v Hutchinson [2023] QCAT 165 Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1 Ollis v Rayner [2007] FCA 2012 Peeke v Medical Board of Victoria (Supreme Court of Victoria, Marks J, 19 January 1994) Pharmacy Board of Australia v Jattan [2015] QCAT 294 Pharmacy Board of Australia v Ludwick [2013] QCAT 235 Pharmacy Board of Australia v Tavakol [2014] QCAT 112 Psychology Board of Australia v Cook [2014] QCAT 162 Seaview Park v Furness [2022] QCATA 177 |
APPEARANCES & REPRESENTATION: | |
Applicant: | R M De Luchi, instructed by Piper Alderman Lawyers |
Respondent: | The respondent appeared on her own behalf |
REASONS FOR DECISION
- [1]This proceeding is concerned with an application brought by the Nursing and Midwifery Board (the applicant) against Ms Nicole Dunjey (the respondent). Since 1 April 2019 the respondent has been practising as an enrolled nurse. The conduct that brings the respondent before the Tribunal, by reference to the agreed statement of facts, can be summarised as follows: on 11 September 2019 the respondent was convicted on her own plea of guilty of obtaining a financial advantage by deception pursuant to section 134.2(1) of the Criminal Code Act 1995 (Cth).[1] The particulars of the charge the respondent pleaded guilty to are as follows:
Between the third day of August 2010 and the twenty-ninth day of November 2016 at Pimpama and elsewhere in the State of Queensland, NICOLE MELISSA DUNJEY did, by a deception, dishonestly obtain a financial advantage from a Commonwealth entity.
- [2]The first allegation against the respondent is that she committed and was convicted of the offence outlined above.
- [3]The second allegation against the respondent can be summarised as follows: on 20 February 2019 the respondent applied for registration with the relevant board as an enrolled nurse. In the respondent’s application for registration, she answered “No” to a question:
Do you have any criminal history in Australia?
- [4]Clause 1.1(e) of the relevant code of conduct[2] requires that nurses inform AHPRA of charges, pleas and convictions relating to criminal offences. Clause 1.2 of the relevant code of conduct also requires nurses to practice honestly and ethically.
- [5]The third allegation is that she improperly obtained registration by failing to disclose to the Board that she had been charged with criminal offences.
- [6]Originally, there were four allegations made against the application, but one of those was not proceeded with.
- [7]Before proceeding further, a number of observations can be made. First, the respondent does not dispute the facts underpinning the three allegations relied on by the applicant. Second, the date in respect of which the respondent was convicted in respect of the Commonwealth fraud charges is not relevant to these proceedings. More will be said about that in a moment. The third observation that can be made is that as at those dates the respondent was not a registered nurse. And, finally, the respondent, in the agreed statement of facts, accepted that her conduct amounted to professional misconduct.
- [8]Pursuant to section 5 of the relevant National Law,[3] professional misconduct is defined as follows:
professional misconduct, of a registered health practitioner, includes—
- 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
- 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
- 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.
- [9]More will be said about this definition below. The conduct of the respondent, as she herself recognises, is very serious, and falls well below the standard expected of a professional health practitioner. The criminal conduct was particularly serious in that it was deliberate, protracted, and involved large sums of money. The total amount involved fell just below $100,000. Unfortunately for the respondent, she had an earlier conviction of dishonesty. As his Honour the sentencing Judge observed:
Unfortunately for you, there are two entries on your criminal history, exhibit 2. In 1998, you were convicted in the Southport Magistrates Court of four charges of stealing by a clerk and servant. You were given no conviction, probation for 18 months, community service 200 hours and restitution of $255. And in 2006, you were convicted in the Southport Magistrates Court of obtaining a financial advantage that involved $12,000, and a reparation order of $8753.50 was made. Community service was ordered under the Crimes Act. You have repaid $1474.11 by way of repayment, although, in terms of your combined debt, you have repaid some $16,000, which is something I have regard to in reaching my decision.
- [10]In respect of the fraudulent conduct against the Commonwealth, the learned sentencing Judge sentenced the respondent to three years of imprisonment to be released after three months upon giving recognisance in the sum of $1,000 and conditional upon her being of good behaviour for a period of three years.
- [11]During the hearing of this matter on 21 November 2023, two issues arose. Having regard to the dates of the fraud and that the respondent was not a registered health practitioner until 1 April 2019, a question arose as to on which limb of the definition of professional misconduct the applicant relied. During the hearing, the Tribunal was advised that the applicant relied on all three limbs of the definition of professional misconduct to capture the respondent’s conduct.
- [12]The second matter that arose was whether reliance on s 114 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) would give the Tribunal the power to suspend a period of suspension imposed pursuant to section 196(2)(d) of the National Law. As those matters were raised by the Tribunal without notice to the parties, the matter was adjourned to permit the parties the opportunity to provide submissions. Submissions were received from the applicant but not the respondent, and the matter resumed on 19 January 2024.
The professional misconduct issue
- [13]As already referred to, the applicant relies on all three limbs of the definition of professional misconduct. In the applicant’s further submissions it is asserted:
It is the conviction which the board relies on for the purpose of ground 1; but in any event, conduct that occurs prior to a practitioner’s registration may still be the subject of a referral to the Tribunal and may be characterised as professional misconduct.
- [14]As to the first element of that submission, the Tribunal is of the view, as has already been expressed, that it has no merit. The definition of professional misconduct focuses on the untoward behaviour of the practitioner. The conviction is the Court’s formal acceptance of the person’s plea of guilty to the allegation of criminal conduct. As already referred to, that criminal conduct occurred between the dates set out in the indictment. As to the second element of that submission, reliance was placed on section 138(1) of the National Law, which relevantly provides, according to the applicant:
138 Application of Part to persons who are registered health practitioners
- A notification may be made under this Part about, and proceedings may be taken under this Part against, a person who is a registered health practitioner in relation to behaviour that—
- (a)occurs while the practitioner is registered in a health profession under this Law; or
- (b)occurred before the practitioner was registered in a health profession under this Law; or
- (c)occurred during any other period in which the practitioner was not registered in a health profession under this Law, including, for example, if the registration had ended or was cancelled, suspended or withdrawn.
- (a)
- [15]Section 138(1)(a) is of no assistance to the applicant because, as already identified, the relevant conduct did not occur when the respondent was a registered practitioner in a health profession. That said, section 138(1)(b) expressly captures conduct that occurred before the practitioner was registered in a health profession. That, of course, is the situation here. Unfortunately, in the applicant’s written submissions, the Tribunal was not directed to subsection (2) of section 138, which provides:
- A registered health practitioner’s behaviour that occurred at a time specified in subsection (1) (b) or (c) may not constitute—
- (a)unsatisfactory professional performance; or
- (b)unprofessional conduct, except as provided by section 139.
- (a)
- [16]Section 139 is irrelevant in the circumstances of this proceeding. Reliance was also placed on the explanatory note for the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld). That part of the explanatory note set out in the applicant’s written submissions says:
New section 138 provides that a notification may be made and proceedings may be taken under part 8 against a person who is a registered health practitioner in relation to behaviour that occurs while the practitioner is registered, occurred before the practitioner was registered, or that occurred during any other period in which the practitioner was unregistered, such as during a lapse or suspension in registration. This amendment is intended to remove doubt that proceedings may be taken against a registered health practitioner for professional misconduct with regard to behaviour that occurred before they were registered or during a gap or suspension in registration, which has been the longstanding interpretation and practise of regulators and tribunals.
- [17]However, that explanatory note goes on further to say:
The section also clarifies that behaviour that occurred before a practitioner was registered may not constitute unsatisfactory professional performance or unprofessional conduct…
- [18]In respect of explanatory notes, it must always, of course, be borne in mind that it is the statute itself that is to be interpreted in a way that will best achieve the purpose of the Act and that extrinsic material such as explanatory notes may only be used in certain circumstances.[4]
- [19]The definition of unsatisfactory professional performance provides:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
- [20]In respect of unprofessional conduct, it is defined as follows:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—
- a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
- a contravention by the practitioner of—
- (i)a condition to which the practitioner’s registration was subject; or
- (ii)an undertaking given by the practitioner to the National Board that registers the practitioner; and
- (i)
- 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; and
…
- [21]As can be seen, both of these definitions, as is also the case in respect of the definition of professional misconduct, focus on the conduct of a registered health practitioner, which is relevantly defined to mean an individual who:[5]
- is registered under this Law to practise a health profession, other than as a student; or
- holds non-practising registration under this Law in a health profession
- [22]A difficulty confronting the applicant is that the first two limbs of what might constitute professional misconduct depends on conduct that constitutes, at an entry level, unprofessional conduct or more than one instance of such conduct. As already identified above, by reference to section 138(2), behaviour that occurred before a practitioner was registered may not constitute unprofessional conduct, except as provided for by section 139, which is of no relevance. It is the view of the Tribunal that the applicant cannot rely on the first two limbs of the definition of professional misconduct to ground a finding in respect of the respondent’s criminal conviction.
- [23]
- [24]As to the first of those cases, it can be readily distinguished on the basis that at the time it was dealt with, the relevant legislation did not have an equivalent to section 138(2) of the National Law. Turning to the decision of this Tribunal in Putha, it was concerned with a situation where the respondent had improperly obtained registration by providing false statements in her application for registration. During the course of its reasons, the Tribunal observed in paragraphs 19 to 22 as follows:
The first question is whether antecedent misconduct (ie conduct by a practitioner before registration) is a proper basis for a finding of professional misconduct under the adopted National Law.
The Board submits that the respondent submitted an updated curriculum vitae when she lodged her application for provisional registration, and that it recorded the same details as those in her first curriculum vitae, and that she held registration at the time of lodging that application. Accordingly it submits that a false representation was made by her after registration, and this can ground a charge of professional misconduct.
That seems to be correct, but I do not think it is necessary to base the necessary finding of professional misconduct on that submission. In my view misrepresentations in an application for registration may be found to constitute professional misconduct, and be the subject of such a charge after registration, as it falls with subparagraph (c) of the definition of ‘professional misconduct’ in s 5 of the adopted National Law. That definition of ‘professional misconduct’ includes:
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.
An advantage seems to have been obtained by reason of the misrepresentation concerning medical practice between 2002 and 2007, in that the Board would at that stage have refused registration and would have advised her to seek employment in a junior hospital position in an ‘area of need’, and complete the required course rotations in a hospital where she would work under close supervision of other health professionals.
- [25]That the Tribunal reached that conclusion in that matter is understandable, in circumstances where the third limb of the definition of professional misconduct is not concerned with unprofessional conduct but conduct per se. Accordingly, the limitations under section 138(2) do not apply. There can be little room for doubt that such a serious fraud on the Commonwealth on the part of the respondent is conduct that is:
inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [26]As to the allegations concerning the respondent’s failure to disclose her criminal history in her application to the board, as was observed by the Tribunal in Kyaw:[9]
…there can in fact be no doubt, that the provision of false documents to the registering body amounts to ‘professional misconduct’.[10]
- [27]In this regard, though, the Tribunal would observe that there, of course, might be cases where the conduct is so trivial and/or dated as to not warrant such a finding, but that, of course, is not the case here.
Sanction
- [28]Having made the relevant findings concerning the conduct of the respondent, it is then necessary to decide what are the appropriate consequences that follow. In the applicant’s original submissions, it contended that the appropriate findings and sanctions were:
- pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal makes findings that:
- (i)the respondent's conduct in respect of each of allegations 1 and 2 in the referral constitutes professional misconduct as that term is defined pursuant to subparagraphs (a) and (c) of section 5 of the National Law;
- (ii)the respondent's conduct in respect of allegation 4 in the referral constitutes unprofessional conduct as that term is defined pursuant to subparagraph (a) of section 5 of the National Law; and
- (iii)in the case of a finding of unprofessional conduct in respect of allegation 4 the conduct, when taken together with the conduct subject of allegations 1 and 2, constitutes professional misconduct;
- (i)
- pursuant to section 196(1)(b)(v) of the National Law, the Tribunal makes a finding that the respondent's registration as an enrolled nurse was improperly obtained because she provided information to the Board which was false or misleading in a material particular;
- In the event of such a finding under (b), the Board would contend that such conduct constitutes an aggravation of the conduct the subject of allegations 1,2 and 4;
- pursuant to section 196(2)(a) of the National Law, the Tribunal reprimands the respondent;
- pursuant to section 196(2)(d) of the National Law, the respondent's registration is suspended for a period of 12 months from the date of the Tribunal's order; and
- pursuant to section 196(2)(b)(i) of the National Law, the Tribunal impose conditions upon the lifting of the suspension requiring the respondent to undertake a program of education approved by the Board in relation to professional ethics, accountability and responsibility.
(emphasis added)
- [29]The conditions sought to be imposed on the respondent’s right to practice were attached to an annexure to the applicant’s supplementary submissions. Those conditions can be characterised as being educational in nature. The respondent has seen those conditions and advised the Tribunal that she has no difficulty on them being imposed. On balance, the Tribunal has decided that the impositions of such conditions is appropriate.
- [30]It was the submission concerning the suspension of the respondent’s right to practice which raised the issue of whether or not the Tribunal has the power to suspend the operation of a suspension from practice by virtue of section 114 of the QCAT Act. Pursuant to section 196(2)(b) of the National Law, the Tribunal, having found a practitioner has behaved in a manner that constitutes professional misconduct, may decide to, among a number of other things, suspend the practitioner’s registration for a specified period. Section 114 of the QCAT Act provides:
114 Conditions and ancillary orders and directions
The tribunal’s power to make a decision in a proceeding (the primary power) includes a power—
- to impose conditions on the decision; and
Example of a condition—
that something required to be done by the decision be done within a stated period
- to make an ancillary order or direction the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.
Examples of ancillary orders or directions—
• an order adjourning the proceeding
• an order or direction that a person give an undertaking to the tribunal
- [31]Prior to the introduction of the National Law, pursuant to section 241(2)(g) of the then Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘DP Act’),[11] the Tribunal could decide to, among other things, suspend the registrant’s registration for a stated time and, pursuant to section 247(1) and section 247(3) of that Act, the Tribunal also had the express power to suspend the whole or part of its decision.
- [32]On behalf of the applicant, it was submitted that:
The Disciplinary Proceedings Act made express both the power to suspend certain decisions including a registrant’s suspension and the mechanism for dealing with the matter in the event there was further conduct by the health practitioner during the period of suspension.
There are no equivalent powers in the National Law.
The power to suspend penalties or sanctions is a common feature in many different aspects of the law, including criminal law. However, these suspended sanctions and penalties exist under different legislation where there are express powers to do so.
In the absence of an express statutory power to do so, the Board submits that the Tribunal is not enabled to suspend the operation of a decision made under s 196 of the National Law.
Further, the removal of the power to suspend sanctions when the National Law was enacted is a strong indication of the legislature’s intention that a disciplinary Tribunal acting under s 196 no longer be empowered make such orders.
- [33]
Neither party has identified the basis upon which the Tribunal may suspend a suspension of a registrant’s registration imposed under s 196(2)(d) of the National Law. Section 196(2) provides that if a responsible Tribunal (in Queensland, QCAT) makes a decision that a practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct, the Tribunal may, amongst other things, “suspend the practitioner’s registration for a specified period”.
The National Law makes no express provision for the suspension of a registrant’s registration pursuant to s 196(2)(d) to itself be suspended. This is to be contrasted with the legislative regime established under the Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’) which formerly applied to registrants in Queensland. By section 241(2)(g) of the Disciplinary Proceedings Act, the Tribunal was, amongst other things, permitted to suspend the registration of the registrant against whom it was satisfied that a disciplinary ground had been established.
- [34]His Honour went on further to observe:[14]
I am aware that under the National Law there have been other decisions of the Tribunal in which suspensions of a registrant’s registration have been suspended. Indeed the decision concerning Ms Naghdi was such a case. However, I am not aware of the question of the Tribunal’s power to suspend a suspension having been considered in any of those earlier cases. It may well be that they proceeded, as this matter seems to have, on an assumption shared by the parties that such a power existed.
- [35]
The power of suspension does not naturally include the power to suspend its operation for a stated period, and to require the balance of the suspension to be carried in the event that stated conditions are not fulfilled. Nor can I see any warrant for the imposition of any ‘operational period’ beyond the period of the suspension during which breach of a stated condition will result in reactivation of a period for which the suspension was lifted.
I respectfully agree with and adopt the similar reasoning and conclusions reached by Horneman-Wren DCJ in Pharmacy Board of Australia v Tavakol [2014] QCAT 112 and Pharmacy Board of Australia v Hung [2014] QCAT 148.
- [36]
…is not intended to create extra jurisdiction where it does not otherwise exist. It cannot be used to do so.
- [37]
Mr Ollis accepts that s 12(2)(b) of the Assets Recovery Act provides that an application may be made for an order under s 12(1) by the owner, in this case Mr Ollis. Section 12(1) provides relevantly:
The Supreme Court may, when it makes a restraining order or at any later time, make any ancillary orders (whether or not affecting a person whose interests in property are subject to the restraining order) that the Court considers appropriate and, without limiting the generality of this, the Court may make any one or more of the following orders:
- an order varying the interests in property to which the restraining order relates.
Mr Ollis submits that an “ancillary order”, as provided for, does not extend to an order varying the restraining order itself. He submits that an ancillary order requires the continued existence of the Supreme Court order in the terms in which it was made.
Such a submission is contrary to s 12(1), which specifically provides for an application to vary the interests in property. This would encompass both the extent of the interest and the identity of the property but, even if it did not, it is an example of the orders that may be made which would vary the terms of the Supreme Court order. The application necessary for Mr Ollis to satisfy the judgment debt would not have necessitated the setting aside of the Supreme Court order but a variation of it, to release some part of the property from the restraint. “Ancillary” orders may encompass not only incidental orders but also supplemental orders (Macquarie Dictionary, 3rd edition). It extends to an order which bears a logical relationship to the principal order (Black’s Law Dictionary, 6th edition).
I agree, with respect, with Giles JA in Woodcroft v Director of Public Prosecutions (2000) 174 ALR 60 at [72] where his Honour said that an ancillary order must be ancillary to something, here to the Supreme Court order, in that it is incidental or supplemental to it. Justice Giles commented that a narrow view of what is incidental or supplemental should not be taken. His Honour then considered, as an ancillary order, an order varying the property the subject of a restraining order but concluded that, in the circumstances of Woodcroft, the order sought could not be so characterised (at [71]–[73]).
- [38]Section 114 of the QCAT Act bears little, if any, resemblance to section 12 of the New South Wales Criminal Assets Recovery Act. That said, the observations of Justice Bennett are, nonetheless, relevant, in that statutory provisions such as section 114 should not be unnecessarily read down and that an ancillary order may:[21]
…encompass not only incidental orders but also supplemental orders … [and] extends to an order which bears a logical relationship to the principal order….
- [39]In this instance, the primary power is the power to suspend a practitioner’s registration for a specified period of time. The capacity to suspend that period of suspension might be seen to be, supplemental to that primary power, and it bears a logical relationship with that primary power. To suspend the operation of a period of suspension might, in appropriate circumstances, assist in best achieving the purpose for which the Tribunal may exercise its primary power. An example of such a case might be where the conduct warrants a period of suspension but where, on balance, the protection of the public is best served by allowing the practitioner to continue to practice subject to the threat of further intervention by the Tribunal should further untoward conduct occur, for example, where a practitioner is the only doctor in a remote location and the practitioner’s conduct was not so serious as to require a period of actual suspension for the protection of the public.
- [40]That said, pursuant to s 250(5) of the DP Act the Tribunal had the express power to, among other things, impose a previously suspended suspension, either in whole or in part. No such express power exists under either the QCAT Act or the National Law.
- [41]In Pharmacy Board of Australia v Jattan,[22] the Tribunal was required to decide the appropriate outcome in respect of a practitioner who had been referred to the Tribunal by the Board pursuant to s 126 of the DP Act in circumstances where that Act had since been repealed.
- [42]Orders proposed jointly by the parties included, among other things, an order that the practitioner’s registration be suspended for a period of 12 months, but that suspension be wholly suspended for an operational period of 12 months.
- [43]In reaching the outcome that it did, the Tribunal said:
Section 241(2)(g) of the Disciplinary Proceedings Act provides that one of the disciplinary actions which the Tribunal may take is suspending the Registrant’s registration for a stated time. Section 247 of the Disciplinary Proceedings Act provided that a decision of the Tribunal to suspend a Registrant’s registration made under s 241(2)(g) could, if the Tribunal was satisfied that it was appropriate to do so in the circumstances, be wholly or partly suspended for an operational period of not more than 5 years.
However, the process by which a Registrant could be dealt with further was provided for in sections 248, 249 and 250. Those provisions required that there be the referral to the Tribunal of a further disciplinary matter under s 126 of the Disciplinary Proceedings Act and, if the Tribunal found the grounds for that referral established, it could, in addition to dealing with that further matter, also deal with the earlier matter in which the suspended suspension had been given. There cannot, however, now be any referral of any matter under s 126 of the Disciplinary Proceedings Act. Nor can there be any further dealing with the suspended matter under s 250.
Thus there is a tension between the power to suspend a decision, including a decision to suspend a Registrant’s registration, under the preserved s 247 of the Disciplinary Proceedings Act, and the lack of utility in exercising such a power given the repeal of sections 126 and 250.
In my view, that tension can be resolved by the Tribunal exercising its powers under s 114(b) of the QCAT Act to make ancillary orders. Section 114(b) provides that the Tribunal’s power to make a decision in a proceeding, referred to as the primary power, includes a power to make an ancillary order the Tribunal considers appropriate for achieving the purpose for which the Tribunal may exercise the primary power. In this case, the primary power is the power to suspend a decision under s 247(3) of the Disciplinary Proceedings Act. The purpose for which the Tribunal may exercise that primary power is to permit, when it is appropriate in the circumstances to do so, the suspension of a decision for a specified period such that the registrant may only have to comply with the suspended decision, or part of the decision, if the Tribunal at some future date finds that further disciplinary grounds have been established, which grounds relate to conduct of the registrant during the specified period.
In Medical Board of Australia v Leggett the Tribunal, without deciding the issue, expressed reservations as to whether s 114(b) would extend to making an order for suspension of registration under s 196(2)(d) of the National Law retrospective in its operation. The Tribunal said that backdating a suspension when the Tribunal formed the view that it would have suspended the practitioner’s registration in other circumstances, but refrained from doing so for particular identified reasons, would not be the exercise of a power considered appropriate for achieving the purpose for which it could exercise the primary power. Rather, the Tribunal would be recognising that the primary power, suspension, ought not be exercised in the particular circumstances of the case.
The considerations here are different. If the Tribunal accepts that a suspended suspension is appropriate and able to be ordered under the Tribunal’s primary power conferred by s 247 of the Disciplinary Proceedings Act, then any further order made under s 114(b) directed to giving utility to that order would be an exercise of a power for achieving that primary purpose.
In my view, it would be appropriate for the Tribunal to make orders which would have the effect which the powers conferred under the repealed s 250 would have had. That effect is that if Mr Jattan were to later be disciplined by the Tribunal in respect of professional conduct which occurred during the period during which his suspension was suspended, then the Tribunal would also be able to deal further with that earlier suspension.
The orders which the Tribunal proposes making are attached. The parties will be given a period of 7 days to make submissions on them and the form which any final orders should take.[23]
- [44]The reasoning of the Tribunal in Jattan was subsequently endorsed by the Tribunal in Medical Board of Australia v Jonsson.[24]
- [45]The circumstances surrounding both Jattan and Jonsson are clearly distinguishable from the circumstances in this case, where the referral is made under the current legislative regime and not the repealed DP Act.
- [46]That said, in both of those cases, the Tribunal took what could be said to be a robust view concerning the extent of the operation of s 114 of the QCAT Act. The guiding principle and purpose of the National Law is the protection of the public. That is, the purpose of the legislation is to ensure, as far as is practicable, the ongoing safety of the public. In appropriate circumstances where the availability of effective public healthcare would be best achieved by suspending, wholly or in part, the suspension of a practitioner’s registration, would that not be an outcome that best achieves the primary purpose of the legislation?
- [47]However, in the circumstances of this case, it is not necessary to express a final view on the matter, because, for the reasons set out below, the Tribunal is of the view that the respondent’s right to continue to practice ought not be suspended at all, let alone for 12 months.
- [48]The purpose of sanctions imposed by this Tribunal are not to further punish the practitioner for her conduct. Instead, they are designed to, as far as practicable, provide for the protection of the public. As was observed in Health Ombudsman v Russell[25] at [23]:
The purposes of sanction in this jurisdiction are protective, not punitive. In the exercise of the protective jurisdiction it is appropriate for the Tribunal to consider the maintenance of professional standards, issues of general and personal deterrence and maintenance of public trust and confidence in the profession.
- [49]Given the protracted nature and the sums of money involved, there is little doubt that the respondent was guilty of committing a very serious fraud on the Commonwealth. There is also no doubt that the dishonesty on the part of a practitioner in dealing with the relevant registration boards is to be treated as constituting very serious untoward behaviour.[26]
- [50]In the applicant’s written submissions concerning the Commonwealth fraud, it was said:
In terms of addressing the period of suspension, the Board's submission with respect to imposing a suspension in the order of twelve months is based upon the following comparatives:
- In Armstrong, the practitioner's registration was cancelled and she was disqualified from applying for registration for a period of two years. The Board recognises this severity of cancellation and disqualification as too long in the matter at hand, as the respondent was not a practising nurse at the time of the conduct and in light of other allegations before the Tribunal in Armstrong.
- In Russell, the practitioner was reprimanded and had her registration suspended for six months. The amount defrauded of the government in Russell was less than half of what the respondent defrauded in the case at hand.
- In Nursing and Midwifery Board of Australia v Williams (Williams), the practitioner was convicted of four counts of fraud on Centrelink totalling a sum of approximately $10,000. She was convicted and sentenced to six months imprisonment, suspended on a good behaviour bond. There were other allegations before the Tribunal. ln that case, the Tribunal ordered that she be reprimanded, her registration be cancelled, and that she be prohibited from reapplying for registration for two years. Considering the amount defrauded in the case at hand, a suspension of twelve months (when considering the severity of that imposed in Williams) seems appropriate.
- [51]A period of suspension is within range, however, that a suspension is within range is not the end of the matter. In respect of the decisions referred to, in Health Ombudsman v Armstrong,[27] it can be immediately distinguished in that at the time, Armstrong was a registered nurse. Further, in addition to two criminal convictions and the failure to report her conduct, the Tribunal also found that Armstrong had deliberately filed a false medical certificate. Significantly, the Tribunal found that Armstrong had shown no remorse for her behaviour, nor any willingness on her part to accept responsibility for that behaviour.
- [52]That can be immediately contrasted with the circumstances of the respondent in this case.
- [53]Turning then to the case of Nursing and Midwifery Board of Australia v Williams,[28] it involved vastly different circumstances and potentially disastrous consequences for the public. Not only was Williams found to have committed numerous instances of dishonesty, which included Centrelink fraud, but in particular, the Tribunal found that she had knowingly or recklessly falsely claimed to hold a diploma in nursing. In respect of that issue, the Tribunal observed:[29]
Thus with respect to ground one of the complaint, the respondent has both orally and by production and uttering of forged documents, sought to induce Ms Workman to accept that she had a diploma in nursing when she did not. The critical consequence of this misrepresentation is the danger that had she succeeded in convincing people that she had the diploma, she would have been given higher duties for which she was not qualified and thereby expose the public to risk, particularly in the area of medication management. This is quite aside from the fact that it was quite dishonest conduct and unacceptable from a professional nurse. Her conduct was also to her advantage in that had she succeeded she would have been paid at a higher rate.
(emphasis added)
- [54]On balance, the Tribunal considers this case to be of little assistance. In Russell, the practitioner faced seven allegations concerning her conduct whilst a registered nurse. The first allegation involved her obstructing the police in respect of two traffic offences. The second involved her being involved in Centrelink fraud. The remaining allegations were related to the respondent’s failure to give the board notice of relevant events and giving false statements in respect of her criminal history in her application to renew her registration. While Armstrong and Russell involve criminal conduct unrelated to their capacity to perform as a nurse, it is nonetheless still a relevant and distinguishing feature that at the relevant time, the respondent in the present case was not a registered practicing nurse.
- [55]In Russell, another distinguishing feature is that the suspension of six months was a sanction agreed to by both parties. As the Tribunal has observed on a number of occasions, the Tribunal will not lightly depart from an agreed position of the parties, particularly when, as in Russell, both parties were legally represented. That is not the situation in this case. There was no such agreement in respect of the imposition of a suspension.
- [56]In the case of the respondent, the last act of criminal dishonesty occurred more than seven years ago, and there has been on reoffending since that time. Significantly, her dishonesty was not motivated by greed. At the time, her unchallenged evidence was that she was in a relationship with an abusive and alcohol-dependent husband in circumstances where there were four children, two of which had been diagnosed with attention deficit disorders and anxiety, and one of the other children was diagnosed with an auditory processing disorder.
- [57]In correspondence addressed to AHPRA, the position of the respondent was described by her in the following way.
I absolutely don’t condone what I did; however, as a mother, I did what I believed was best at the time. I guess you could say I was desperate to provide the best care to my children, wanting them to grow up to be the best versions of themselves, and I couldn’t do that adequately given that my husband was financially abusive and not contributing to daily living and medical expenses.
- [58]As observed, none of these assertions made by the respondent were challenged in this proceeding, and it would appear that they were accepted by the sentencing judge. In that respect, there were also matters addressed by the learned sentencing judge who also considered that in the case of the respondent, there was genuine remorse; a factor that was not apparent in the case of Armstrong. It is also relevant, and to the respondent’s credit, that, as set out in the agreed statement of facts, that it was her who, on 11 February 2020, gave notice to the applicant of her criminal history including attaching the remarks of the sentencing judge.
- [59]The respondent also has the benefit of a number of very favourable references which speak very highly of her work ethic and her dedication to her profession and patients. The respondent commenced working at Doctors at Southport Park Medical Practice in a part time capacity on 4 June 2020. Such was her level of performance that she was made the treatment room coordinator at that practice in January 2023. The practice where the respondent works is clearly a busy one. It was described by the practice’s general manager in the following terms:
Doctors at Southport Park is a growing practice, currently with five GPs working various capacities, operating seven days a week, and providing care to approximately 450 patients per week. Nikki’s role includes supporting the GPs in their care of our patients, working within the scope of practice of an Enrolled Nurse in treatment room (acute), and preventative health and chronic case domains.
- [60]To remove the respondent for a significant period of time, or indeed, any period of time from that practice would obviously affect her capacity to earn income in circumstances where her ability to be employed had already been interrupted by her three months of incarceration. More importantly, however; it would impact on the ability of this busy practice to provide the best level of care that it can. In such circumstances, one would wonder how a period of suspension, even for a short period, would work in the interests of the public.
- [61]Deterrence typically looms large in cases such as this. There is no evidence that personal deterrence is a significant issue, given the passage of time and the conduct of the respondent over that time. In any event, if a three-year sentence suspended after serving three months of actual custody does not act as a strong personal deterrence, a period of suspension from practice is unlikely to do so. The same could be said in respect of the issue of general deterrence.
- [62]In this instance, the respondent has already been seriously punished for her criminal behaviour, and there is no suggestion that a period of actual suspension is required for the protection of the public. Even taking into account the other charges, the Tribunal is of the opinion that the imposition of a period of actual suspension smacks of an outcome more directed to further punishment than protection.
- [63]In Nursing and Midwifery Board v Hutchinson,[30] the Tribunal was concerned with a registered nurse who had been found guilty on her own plea of defrauding her car insurer. For that offending, she was sentenced to a head sentence of 18 months to be suspended after three months with operational period of three years. It is to be noted that the sum involved in that case was much less than was the situation regarding the respondent’s fraud on the Commonwealth. The only real issue before the Tribunal in Hutchinson was whether or not the findings of the Tribunal ought to include a period of suspension from practice for a period of three months. During the course of delivering the reasons of the Tribunal, Judicial Member Reid observed:[31]
It is of course important that those who are members of a profession behave in a way that does not bring discredit on their profession. This is important for confidence in the professional integrity of the profession, and its members. Only if - in this case - nurses act honestly that the health and safety of the public can be ensured.
- [64]However, the Judicial Member went on to conclude that in the circumstances of that case, little utility would be achieved by imposing a period of suspension of practice.
- [65]The matters that would appear to have been taken into account in reaching that conclusion would seem to include the following. First, that the sentence imposed of itself would send a significant message of both personal and general deterrence; second, the remorse and shame already experienced by the practitioner; third, the practitioner had otherwise a fine and extensive career as a nurse; fourth, her career had already been disrupted by virtue of the sentence imposed and being stood down from her employment for three months; finally, that the practitioner had the capacity to return to her profession. In that regard, it was said:[32]
She should continue with the important work she’s been doing in Darwin or elsewhere if that is where she chooses to work.
- [66]Most of those elements are present in this case. Clearly, the fraud in the present case is more serious, and neither the allegations concerning the making of misleading statements nor the failure to report were present in Hutchinson. That said, at the time of committing the fraud, the present respondent was not a registered nurse. More importantly, perhaps, is that in the case of Hutchinson, she was not in employment as a nurse at the time of the hearing where a short period of suspension was being sought. That can be contrasted with the situation here where any period of suspension would see the respondent taken out of a busy medical practice where she is held in high regard.
- [67]On balance, the Tribunal has reached the conclusion that neither the fraudulent conduct of itself, nor in conjunction with the other two counts, ought to result in a suspension of practice being imposed. In this regard, it is also to be borne in mind that the imposition of a formal reprimand is not a trivial matter, as was observed by the then-Deputy President of this Tribunal in Pharmacy Board of Australia v Ludwick:[33]
In contending for a reprimand, Counsel for Ms Ludwick submits that a reprimand does not represent in this, or in any case, a mere slap over the wrist. In Peeke v Medical Board of Victoria, it was observed that a reprimand was a serious form of censure and condemnation and “certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner”. Similarly, in Medical Board of Australia v Jones, Judge Kingham, Deputy President, said of the sanction of reprimand that it was not trivial as it was a public denunciation of the professional’s conduct which is recorded on the public register of practitioners. Section 225(j) of the National Law requires a national register to include the fact that the practitioner has been reprimanded.[34]
- [68]For the reasons given, the decision of the Tribunal is that:
- In respect of the allegations against the respondent, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland).
- The respondent’s registration was improperly obtained because she provided information to the Board which was false or misleading in a material particular pursuant to s 196(1)(b)(v) of the Health Practitioner Regulation National Law (Queensland).
- The respondent is reprimanded pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland).
- The respondent’s practice be subject to the conditions as particularised in in ‘Annexure A’ to the applicant’s submissions in reply.
- Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the said conditions be 6 months.
- It is further ordered that part 7, division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed on the respondent’s registration.
- ‘Annexure A’ to the applicant’s submissions in reply
![Nursing and Midwifery Board of Australia v Dunjey [2024] QCAT 96](/judgmentview/image?name=361317.001.png&id=361317)
Footnotes
[1] Criminal Code Act 1995 (Cth) (‘Criminal Code’) sch 1.
[2] Nursing and Midwifery Board of Australia, Code of Conduct for Nurses (at 1 March 2018).
[3] Health Practitioner Regulation National Law (Queensland) (‘National Law’).
[4] See sections 14A and 14B of the Acts Interpretation Act 1954 (Qld).
[5] National Law s 5.
[6] [2019] VCAT 467 (‘Ho’).
[7] [2014] QCAT 159 (‘Putha’).
[8] [2016] QCAT 34 (‘Kyaw’).
[9] See also Health Ombudsman v Lemon [2020] QCAT 266, [8].
[10] At paragraph [19].
[11] Repealed by the Health Ombudsman Act 2013 (Qld) s 321.
[12] [2014] QCAT 112 (‘Tavakol’).
[13] At paragraphs [39]–[40].
[14] At paragraph [49].
[15] [2014] QCAT 162 (‘Cook’).
[16] At paragraphs [23]–[24].
[17] [2022] QCATA 177.
[18] At paragraph [28].
[19] [2007] FCA 2012.
[20] At paragraphs [21]–[24].
[21] Ollis v Rayner [2007] FCA 2012 at [23].
[22] [2015] QCAT 294 (‘Jattan’).
[23] Jattan, [101]–[108] (citations omitted, emphasis added).
[24] [2017] QCAT 336 (‘Jonsson’).
[25] [2021] QCAT 188 (‘Russell’).
[26] See, e.g., Medical Board of Australia v Waldron [2017] QCAT 443 and Medical Board of Australia v Putha [2014] QCAT 159.
[27] [2018] QCAT 382 (‘Armstrong’).
[28] [2013] SAHPT 1.
[29] At paragraph [12].
[30] [2023] QCAT 165 (‘Hutchinson’).
[31] At paragraph [7].
[32] At paragraph [11].
[33] [2013] QCAT 235 (‘Ludwick’).
[34] Ludwick, [57] (citations omitted); See also, Medical Board of Australia v Jones [2012] QCAT 362, Psychology Board of Australia v Cameron [2015] QCAT 227 and Peeke v The Medical Board of Victoria (Supreme Court of Victoria, Marks J, 19 January 1994).