QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

Reasons and Decision

1. [1]
   This proceeding is concerned with an application brought by the Director of Proceeding on Behalf of the Health Ombudsman (the applicant) against one Shuang Ma (the respondent).
2. [2]
   There is an agreed statement of facts signed off on behalf of the lawyers representing both parties. The relief sought is also agreed to by the lawyers representing both parties. It is of course a matter for this Tribunal to determine what the appropriate findings and orders ought to be but that the parties have agreed to the facts and appropriate relief is a significant factor to be taken into account. Particularly where both parties are represented by competent legal representatives.
3. [3]
   In this matter save for one exception which will be discussed below, the Tribunal is of the view that the orders and findings sought would be made by reference to the agreed statements of facts.
4. [4]
   The relevant facts, matters and circumstances can be summarised as follows:

   1. The respondent is an Australian permanent resident having moved to Australia from China in 2007. She was aged between 27 and 32 years of age at the time of the relevant conduct;
   2. The respondent obtained a Bachelor of Nursing from Queensland University of Technology in 2012. She was first granted registration by the Nursing and Midwifery Board of Australia on or around January 2013;
   3. At the relevant time the respondent held general registration as a registered nurse pursuant to the Health Practitioner Regulation National Law (Queensland);
   4. The respondent is currently employed as a cosmetics nurse at Nefertiti skin studio in Coopers Plains. The business is operated by the respondent together with her husband.
5. [5]
   The conduct that brings the respondent before the Tribunal can be particularised as follows:

   1. Between 27^th of February 2018 and 2^nd of June 2022 the respondent was issued with infringement notices for speed and red light offences detected by Queensland camera detection event programs;
   2. In response to each infringement notice the respondent made a statutory declaration that she had not been in charge of the vehicle captured. New infringement notices were then issued to the “nominated” driver;
   3. In 2021 the Road Policing Investigation Unit initiated an investigation into the fraudulent renominations of a number of speed camera infringements. This investigation identified that a person, later identified as the respondent, had submitted 5 statutory declarations within a 6 month period which nominated 5 different people as being the driver involved. Each of these 5 people were nominated as having a Brisbane residential address and had Chinese drivers licence numbers. Inquiries with the Australian border force showed that no individuals with these names were recorded as having ever entered into Australia;
   4. As it turned out, in exchange for cash, a fictitious entity would nominate themselves as the driver in charge of the vehicle in the statutory declaration. The respondent would attend upon a Justice of the Peace to have the relevant statutory declarations of that person witnessed and it would then follow that an infringement notice would then be reissued to this fictitious entity rather than to the actual driver. Of course the fines were never paid;
   5. The respondent made use of this scheme to avoid 18 infringement notices to the value of just under $4500.00. The penalties also included 40 demerit points.
6. [6]
   On 15^th of August 2023 the respondent was charged with:

   1. 18 counts of false declarations pursuant to s 194(1) of the Criminal Code and;
   2. 18 counts of fraud dishonestly inducing persons to act pursuant to s 408C(1)(f) of the Criminal Code.
7. [7]
   On 16^th January 2024 in the Magistrate Court the respondent pleaded guilty to one count of fraud, that being dishonestly inducing persons to act pursuant to s 408c(1)(f) of the Criminal Code. That is, the respondent pleaded guilty to and was sentenced on the basis of a single fraud charge rather than all of the charges referred to above.
8. [8]
   The respondent had cooperated with the police regarding the operation of the scheme and of course also assisted in the administration of justice by pleading guilty to the single fraud charge.
9. [9]
   The respondent had also agreed to give evidence in respect of other offenders involved in the fraudulent scheme. No doubt these matters were taken into account together with some other mitigating factors that will be spoken about in a moment by the sentencing Magistrate and the respondent was fined $2000 and no conviction was recorded.
10. [10]
    Initially the respondent asserted that she was not aware that her conduct was unlawful or otherwise improper. It would seem that such activities, according to her, were common place in China and she, according to the agreed schedule of facts, believed that she was not doing anything wrong. Unsurprisingly the applicant does not accept this version of events. The Tribunal also rejects any such suggestion.
11. [11]
    In the submissions on behalf of both parties it can be accepted that when the respondent was being sentenced the Magistrate took into account a number of factors which worked in favour of the respondent. The tribunal considers it is appropriate that those matters ought to be considered in reaching the outcome that it does.
12. [12]
    Those mitigating factors can be summarised as follows:

    1. The respondent is now a 33 year old professional woman with no prior criminal history or any prior disciplinary history;
    2. She assisted police by making admissions and entering into an agreement to give evidence against others involved in the scheme;
    3. It also seems to be accepted that this demonstrated not only remorse but also insight into her criminal conduct. As also mentioned she assisted in the administration of justice by pleading guilty and thereby avoiding an unnecessary trial;
    4. The respondent also has a strong history of employment having obtained registration as a nurse in 2013;
    5. The Magistrate also took into account that the respondent was the mother of a 2 year old child and the motivation for her offending was to maintain her driver’s licence in order to continue working and contributing to the financial support of her family;
    6. finally, no doubt the learned sentencing Magistrate also took into account the references provided on behalf of the respondent and that she had completed a Traffic Offenders Program.
13. [13]
    In this regard it was finally submitted on the respondent’s behalf by both parties:

“The learned Magistrate acknowledged the factors in the respondent’s favour by declining to record a conviction which is significant in the context of fraud offences. In other words the experienced sentencing Magistrate did not consider it was necessary in order to protect the community to record a conviction against the respondent”.

14. [14]
    It is uncontroversial that such serious fraudulent conduct amounts to professional misconduct.
15. [15]
    Turning then to the relief sought which includes a one month suspension of the respondent’s practice a number of cases were relied upon. Without further discussion save for one matter those cases will not be further commented upon and they are:

    1. Medical Board of Australia v Yos [2023] QCAT 164
    2. Health Ombudsmen v Park [2021] QCAT 309
    3. Health Ombudsmen v Ku [2019] QCAT 377
    4. Health Ombudsmen v Hutchinson [2022] QCAT 265
16. [16]
    By reference to summary of those cases provided in the written submissions a significant feature that is not present in this case is that in each of those cases the fraud committed by the relevant practitioner was directly linked in one way or another with his or her professional practice.
17. [17]
    Given the mitigating factors in favour of the respondent referred to above, together with the conditions to be imposed on the respondent’s right to practice and the absence of any direct relationship between the fraud and the respondent’s actual practice as a professional nurse, the Tribunal has reached the conclusion that the imposition of a suspension period of only one month ought not be imposed.
18. [18]
    In this regard it has to be borne in mind that the purpose of proceedings such as this is to ensure as far as is practicable, the safety and wellbeing of the public, it is not to further punish the practitioner for her criminal conduct. That has already been dealt with in the Magistrates Court.
19. [19]
    Deterrence both personal and general can be relevant in this regard by sending an appropriate message of deterrence to hopefully deter practitioners from committing such misconduct. However, in this case, the Tribunal is of the view that a suspension of only one month would not send any meaningful message of deterrence, be it either personal or general. And there is no suggestion that the respondent’s professional conduct as a nurse is in any way a threat or risk to her patients or the public at large. In this regard it is also a relevant consideration that the reprimanding of the respondent is by itself a significantly adverse finding against the respondent.
20. [20]
    In paragraph 58 and 59 of the parties’ submission in this regard it is said:

“The Tribunal has observed a reprimand will almost always follow a finding of professional misconduct. It is well recognised that a reprimand is not a trivial penalty. It is a public denunciation of a practitioners conduct. It is a matter of public record until the board considers it appropriate to remove the information form the public register”.

21. [21]
    The Tribunal endorses those observations.
22. [22]
    For the reason given the findings and the orders of the Tribunal are as follows:

1. 1.Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘the Act’) the respondent has behaved in a way that constitutes professional misconduct.
2. 2.Pursuant to s 107(3)(a) of that Act the respondent is reprimanded.
3. 3.Pursuant to section 107(3)(b) of that Act, the following conditions are imposed on the respondent’s registration:

1. (a)
   The practitioner must undertake and successfully complete an education program on ethics as approved by the National Board and including a reflective practice report, as follows:

1. (i)
   Within one (1) month of the notice of the imposition of this condition, the practitioner must nominate in writing for approval by the National Board a program of education on professional ethics, accountability and responsibility, including a copy of the curriculum of the education program;
2. (ii)
   After receiving the National Board’s approval of the nominated education program, the practitioner must register for the next available approved education program;
3. (iii)
   Within one (1) month of completing the approved education program, the practitioner must provide to the National Board:

1. A.
   evidence of successful completion of the education program;
2. B.
   a reflective practice report demonstrating, to the satisfaction of the National Board, that the practitioner has reflected on the issues that gave rise to this condition and how the practitioner has incorporated the lessons learnt in the education into the practitioner’s practice.

1. 4.Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to those conditions.
2. 5.Pursuant to s 109(3) of that Act, the review period for the condition imposed by this decision is six (6) months.
3. 6.No order as to costs.