Nursing and Midwifery Board of Australia v KMW
[2025] QCAT 105
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- Nursing and Midwifery Board of Australia v KMW[2025] QCAT 105
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Nursing and Midwifery Board of Australia v KMW[2025] QCAT 105
Nursing and Midwifery Board of Australia v KMW[2025] QCAT 105
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v KMW [2025] QCAT 105 |
PARTIES: | Nursing and midwifery board of australia (applicant) v kmw (respondent) |
APPLICATION NO/S: | OCR276-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 13 May 2025 |
HEARING DATE: | 5 February 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Dick SC Assisted by: Ms S Hopkins Ms E McKibbin Mr D Lyons |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
THE TRIBUNAL ORDERS THAT:
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent practitioner is a registered nurse – where the applicant Board alleges that the respondent sent unsolicited and unwelcomed messages to his colleagues via Facebook that were of a sexualised or harassing nature – where the respondent engaged in inappropriate sexual conduct with his stepdaughter without her consent – where the applicant Board is seeking, inter alia, that the respondent’s registration is cancelled and the respondent be disqualified from applying for registration as a registered health practitioner – where the applicant Board alleges that the respondent has a health impairment – whether the respondent’s moral culpability is reduced – whether the Tribunal should cancel the respondent’s registration and disqualify him from applying for registration – whether the Tribunal is satisfied that the respondent has a health impairment Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Briginshaw v Briginshaw [1938] 60 CLR 336 Medical Board of Australia v Wong [2015] QCAT 439 Medical Board of Australia v ZQX [2024] QCAT 532 WSS v Medical Board of Australia [2021] QCAT 5 |
APPEARANCES & REPRESENTATION: | |
Applicant: | R De Luchi instructed by Clayton Utz |
Respondent: | S Robb KC instructed by QNMU Law |
REASONS FOR DECISION
- [1]At all relevant times, the respondent was a registered nurse.
- [2]The applicant has referred matters to the Tribunal for hearing and determination pursuant to s 193B(2) of the Health Practitioner Regulation National Law 2009 (Queensland) (‘National Law’).
- [3]Pursuant to s 196 of the National Law, it is open to the Tribunal to make the following findings:
- that the respondent has no case to answer and no further action is to be taken; or
- one or more of the following –
- the respondent has behaved in a way that constitutes unprofessional conduct; and/or
- the respondent has behaved in a way that constitutes professional misconduct.
- [4]In relation to ground 1 of the referral, the respondent admits his behaviour constitutes professional misconduct. In relation to ground 2, the respondent does not dispute that his behaviour constitutes professional misconduct.
The grounds and facts relied upon
Ground 1: sexual harassment
- [5]The applicant alleges that:
- during the period from about September 2018 to about April 2019 in respect of colleague A;
- during the period from 31 March 2019 to about 21 April 2019 is respect of colleague B; and
- on 24 February 2019, in respect of colleague C;
the respondent failed to maintain proper professional boundaries by engaging in sexual harassment and/or inappropriate conduct with his colleagues in sending unsolicited and unwelcomed messages to each of the above colleagues via Facebook. The messages were of a sexualised or harassing nature.
- [6]The messages are set out in the notice of allegations.
Ground 2: inappropriate sexual contact of a familial relation
- [7]The respondent engaged in inappropriate sexual conduct with his stepdaughter XX without her consent.
- [8]XX, who was 21 years old at the time, was visiting the respondent and his wife from overseas. All parties had been and were drinking alcohol.
- [9]During the course of the evening, the respondent squeezed XX’s breast for a few seconds, grabbed her hips and pulled her into him, attempted to kiss her and touched her upper thigh through her pyjama shorts.
Determinations available to the Tribunal
- [10]The Tribunal may make one or more of the following determinations:
- caution or reprimand the respondent;
- impose conditions on his registration;
- require him to pay a fine of not more than $30,000;
- suspend his registration for a specified period;
- cancel his registration.
Onus and standard of proof
- [11]The applicant bears the onus of proof to the standard discussed in Briginshaw v Briginshaw [1938] 60 CLR 336 at 362. The respondent has admitted or not refuted that his behaviour in grounds 1 and 2 amount to professional misconduct. Nevertheless, the Tribunal is still required to determine the issue albeit the issue is agreed between the parties. The Tribunal is comfortably satisfied that the allegation of professional misconduct is made out in grounds 1 and 2.
Other relevant background matters
- [12]The respondent’s registration has been subject to an undertaking, accepted by the applicant in early 2022, requiring, inter alia, that he maintain a stringent treatment regime with a psychologist. He has complied with the condition.
- [13]In addition, in 2024, the respondent completed an education program with Davaar Consultancy Training and Development dealing with appropriate professional boundaries for health practitioners.
- [14]The respondent was demoted in 2019 as a direct result of his conduct.
- [15]In October 2021, the respondent was offered the opportunity to act in a Clinical Nurse position and in June 2022, his position as a Clinical Nurse was made permanent, returning him to his classification prior to his demotion.
- [16]At the request of the applicant, Dr Andrew Aboud, psychiatrist, reviewed the respondent and reported that the respondent had suffered Recurrent Depressive Disorder since 2018 and was coping maladaptively by binge drinking.
- [17]The conduct was not related to patients or patient care.
- [18]There has been a significant delay (approaching 6 years) between the impugned conduct and this hearing.
- [19]The respondent has demonstrated insight and remorse.
- [20]The matter has been hanging over the respondent’s head for many years.
- [21]The Tribunal is of the view that, as no like-behaviour has been alleged over those years, there is evidence of rehabilitation.
- [22]There is evidence that the respondent was suffering a mental health condition at the time which reduces his moral capability.
Submission on sanction
- [23]The applicant’s submission before the Tribunal is that:
- he be reprimanded;
- his registration be cancelled; and
- he be disqualified from applying for registration, enrolment or an authorisation to practise nursing for a period of 6 months.
- [24]The applicant argues that there should be a cancellation rather than a suspension because:
- the seriousness of the conduct; and
- a concern about his current fitness to practise.
- [25]The applicant concedes that the conduct alone would not reach the threshold where there must be a cancellation but argues that the material from the treating practitioner indicates the respondent’s condition may be presently affecting his ability to practise. Further, that at the end of the cancellation, and if he applies to re-register, there will be a ‘flag’ to say that he should have a health assessment at that time.
- [26]The respondent argues that the appropriate sanction is that he be reprimanded and possibly fined.
- [27]In relation to the argument for cancellation, the respondent points out that under his present undertaking (that is, while he is registered) the applicant can require him at any time to attend a psychiatrist. There is considerable force in that argument.
Ground 3
- [28]There is a discrete legal argument in relation to ground 3 which alleges the respondent has the impairment as defined in s 5 of the National Law in that he has a physical or mental impairment, disability or disorder, namely Recurrent Depressive Disorder and/or Alcohol Use Disorder, that detrimentally affects, or is likely to detrimentally affect, his capacity to practice as a registered nurse.
- [29]In the particulars, the applicant relies on a report from Dr Aboud, dated 27 December 2021, in which Dr Aboud diagnosed the respondent with the named disorders which he said “when active” would amount to a mental impairment that detrimentally affects, or is likely to detrimentally affect, his capacity to practise the profession. More recently, in April 2023 the respondent’s treating practitioner reported to the applicant that the respondent had “relapse potential (alcohol)”.
- [30]In October 2023, he reported “ongoing treatment would be beneficial as there is always potential for relapse for anybody”.
- [31]The respondent accepts he has mental health conditions and that they are relevant to grounds 1 and 2.
- [32]However, the respondent argues that, as particularised, ground 3 does not establish that the respondent has an impairment within the meaning of the National Law presumably because he is being treated and there is no evidence the impairment is presently active.
- [33]In Medical Board of Australia v Wong [2015] QCAT 439, Judge Horneman-Wren SC determined that the practitioner had an impairment. In considering the evidence which similarly demonstrated that the practitioner’s condition was being managed, his Honour said at [72]:
The expression “that detrimentally effects or is likely to affect… the person’s capacity to practise the profession” must extend to impairments, disabilities, conditions or disorders which, as here, when controlled by treatment result in there being no immediate detrimental affect on the practitioner’s capacity. Where the practitioner suffers from an underlying impairment, disability, condition or disorder which in the absence of treatment would, or would be likely to, detrimentally affect the person’s capacity to practice, that person may have an impairment for the purposes of the National Law. A person, for example, with ongoing substance dependence does not cease to have an impairment when sober or abstinent.
- [34]Wong has been cited with approval in related decisions[1] confirming that an impairment within the s 5 definition does not cease to be an impairment just because it is amenable to treatment and if treated would not detrimentally affect the practitioner’s capacity to practise. I agree.
- [35]Here, the particulars did inform the respondent of the case to be met but the practical effects of a finding contended for by the applicant serve a purpose in assisting the Nursing and Midwifery Board of Australia to carry out its functions[2] and in some circumstances may have the effect of reducing a practitioner’s moral culpability.
- [36]The Tribunal is satisfied that it should make a finding of impairment.
Comparable cases
- [37]The Tribunal has been provided with authorities. Some of the authorities were unhelpful but others provided guidance. Of course, each case turns on its own facts, but comparable cases may provide assistance in deciding the allowable parameters of sanction.
- [38]Sanction is primarily about the protection of the public and the preservation of confidence in the profession.
- [39]The Tribunal is of the view that, taking into account the matters mentioned earlier, including the lapse of time, the appropriate orders are as follows:
- the conduct of the respondent amounts to professional misconduct;
- he is reprimanded; and
- there are no orders as to cost.
Non-publication order
- [40]The respondent has applied for an order that there be no publication of various matters.
- [41]I note the reasons of the Deputy President, her Honour Judge Dann, in Medical Board of Australia v ZQX [2024] QCAT 532 and adopt what her Honour has set out in paragraphs [6]-[7]:
Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) [(‘QCAT Act’)] confers power on the Tribunal to make an order prohibiting the publication – other than in the way and to the persons stated in the order – of:
- the contents of a document or other thing filed in or produced to the Tribunal;
- evidence given before the Tribunal;
- any order made or reasons given by the Tribunal.
Section 66(2) provides the Tribunal may make an order under s 66(1) only if it is satisfied it is necessary to do so for any of the reasons contained in that subsection.
- [42]In this case, the application is based on:
- to avoid publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interest of justice.
- [43]Her Honour continued (at [8]):
It has been observed that this provision gives the Tribunal a broader power to constrain the operation of the open court principle that is available to courts generally by virtue of their inherent (or implied) jurisdiction.
- [44]Her Honour continued (at [10]-[11]):
Non-publication orders over information relating to health and/or treatment of persons are regularly regarded as confidential or otherwise information the publication of which is contrary to the public interest.
In respect of the respondent, it has been submitted that the NPO is necessary on the basis of his impairment and the evidence relating to it, which would also properly be regarded as confidential information.
- [45]In addition, here, the parties agree that s 98 of the Health Ombudsman Act 2013 (Qld) applies. That section provides that a hearing of an impairment matter be conducted in private/not open to the public, unless otherwise ordered. It would seem anomalous to proceed under that section and then to publish the contents of the hearing, however, as I have pointed out, non-publication is dealt with under the QCAT Act.
- [46]Here, I am satisfied that the evidence of the respondent’s impairment and information relating to his treatment properly enlivens the discretion afforded to the Tribunal by s 66(2)(d) of the QCAT Act. Given this, I am satisfied it is necessary and appropriate to make a non-publication order in respect to the respondent’s identity.