Health Ombudsman v Yu[2025] QCAT 237

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

The Conduct the Subject of the Referral

1. [1]
   The respondent obtained a Bachelor of Nursing from the University of Western Sydney in 2012.  On or around 11 July 2013, the respondent was granted registration by the Nursing and Midwifery Board of Australia (‘Board’).  The respondent failed to renew her registration and was unregistered between 31 May 2014 and 20 October 2014.  She has been registered since then.
2. [2]
   At the time the conduct occurred the respondent was registered, but not employed, as a registered nurse.  The applicant’s case is that:

   1. Allegation one: On 21 December 2024, the respondent was convicted in the Magistrates Court of Queensland of:
      3. (i)
         one count of fraud (dishonestly induce persons to act) pursuant to section 408C of the Criminal Code Act 1899 (Qld) (‘Criminal Code’); and
      4. (ii)
         three counts of false declarations pursuant to section 194(1) of the Criminal Code;
   2. Allegation two: the respondent contravened sections 130(1) and 130(3)(a)(ii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) as the offences were punishable by 12 months' imprisonment or more and the respondent failed to give the Board written notice of being charged of the offences.
3. [3]
   The respondent admits the allegations.
4. [4]
   The parties have filed a Statement of Agreed Facts and as a result there are no factual issues in dispute.

Allegation One

5. [5]
   It is agreed between the parties that, in respect of allegation one, between 24 July 2021 and 19 March 2022, the respondent received infringement notices for speeding and red-light offences.  On each infringement notice, the respondent made a statutory declaration that she had not been in charge of the vehicle.  New infringement notices were issued to the nominated driver.  After investigation, the Road Policing Investigations Unit formed the view that the persons nominated by the respondent were ‘fictitious entities’ created purely for the purpose of the respondent avoiding the Queensland camera-detection offence fines.
6. [6]
   In exchange for cash, the ‘fictitious entity’ would nominate themselves as the driver in charge of the vehicle in the statutory declaration.  The respondent then made statutory declarations to this effect signed in front of a Justice of the Peace.  Infringement notices were then reissued to the ‘fictitious entity’.  The fines were never paid.
7. [7]
   It is admitted by the respondent that she made use of the scheme to avoid three infringement notices to the value of $779 and five demerit points.
8. [8]
   On 21 December 2023, the respondent pleaded guilty to:

   1. one count of fraud; and
   2. three counts of false declarations.
9. [9]
   The respondent was sentenced to a period of two months on each offence, with the whole term to be suspended.  It was further ordered that the respondent must not commit another offence punishably by imprisonment within a period of 12 months.  A conviction was recorded for one count of fraud (dishonestly induce persons) and three counts of false declarations. 

Allegation Two

10. [10]
    In respect of allegation two, it is agreed that, pursuant to sections 130(1) and 130(3)(a)(ii) of the National Law, the respondent did not notify the Board in writing within seven days after being changed with the offences punishable by 12 months' imprisonment or more.
11. [11]
    In this case, each of the fraud and false declaration charges are punishable by a period of imprisonment exceeding 12 months.
12. [12]
    In contravention of section 130(1) of the National Law, the respondent failed to give the Board written notice of the fraud and false declaration charges.

Discussion and Sanction

13. [13]
    In respect of allegation one, the applicant submits that the conduct should be properly characterised as professional misconduct and in respect of allegation 2, that the conduct should be characterised as unprofessional conduct.
14. [14]
    The Tribunal has jurisdiction in respect to this matter having regard to section 9(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).  The Health Ombudsman Act 2013 (Qld) (‘HO Act’) is the enabling act for this purpose.
15. [15]
    The Tribunal sits in its original jurisdiction pursuant to sections 9(2)(a) and 10(1)(b) of the QCAT Act.
16. [16]
    The Tribunal acknowledges that the applicant bears the onus of proving its case to the standard of reasonable satisfaction having regard to the requirements identified in Briginshaw v Briginshaw (1938) 60 CLR 336.
17. [17]
    The Tribunal has had regard to the definition of professional misconduct in section 5 of the National Law and the decision of the full court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110] where, with respect to the meaning of ‘substantial’, the Court said:

… it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner.  In the context of this appeal, “substantial” connotes a large or considerable departure from the standard required.  This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of the conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

18. [18]
    The Tribunal has also noted the definition of unprofessional conduct in section 5 of the National Law. 
19. [19]
    The Tribunal has had regard to the comparable cases provided by the applicant, and notes in particular the decision of Medical Board of Australia v YOS [2023] QCAT 164, where a finding of professional misconduct was made in respect of the practitioner taking blank scripts from a hospital and the practitioner was reprimanded.  The Tribunal noted that the respondent was struggling with several serious medical conditions and that the conduct was deemed ‘extremely unsophisticated’.^[1]
20. [20]
    The Tribunal also notes the decision in Health Ombudsman v Niem Quoc Tang [2020] QCAT 165, where the practitioner made 38 false declarations as to his level of income for the purpose of Centrelink benefit payments.  The practitioner pleaded guilty to two counts of obtaining a financial advantage.  The Tribunal found that the practitioner engaged in professional misconduct in relation to the criminal charges and unprofessional conduct in relation to failure to notify the Board.  The practitioner was reprimanded.
21. [21]
    In respect to allegation one, the Tribunal notes the submission that dishonesty or fraud will almost always be characterised as professional misconduct.^[2]
22. [22]
    It is also submitted, and the Tribunal accepts, that the authorities confirm this will be the case ‘even when the fraud was not commissioned in the course of one’s professional duties’.^[3] 
23. [23]
    The Tribunal accepts that the conduct amounts to a considerable departure from the standards reasonably expected from a nurse.  The Tribunal is satisfied that the subject of allegation one is professional misconduct.
24. [24]
    The Tribunal notes the applicant’s submission that where a contravention of section 130 of the National Law is found to meet the definition of unprofessional conduct, there should be a separate finding, for the purpose of the record, of unprofessional conduct.^[4]
25. [25]
    With respect to the characterisation of the conduct the Tribunal notes the decision of Health Ombudsman v Antley [2016] QCAT 472, where the Honourable JB Thomas AM QC stated:

Charge 5 alleges a breach of the statutory duty to report criminal charges and convictions.  The point of the statutory provision^[5] is to enable the professional board to consider circumstances that might bear on the fitness of a registered member to practise.  Such a charge is secondary to the original misconduct that grounds the relevant charge and conviction, and whilst failure to report may justify a finding of unprofessional conduct, its usual effect is to add a relatively minor aggravation to the totality of the conduct that has to be considered.  Having regard to the confused state the respondent has shown throughout the conduct of these proceedings, that should be the effect of charge five in the present matter.

26. [26]
    In respect of allegation two, the Tribunal is satisfied that the conduct is unprofessional conduct.
27. [27]
    The Tribunal accepts the well-established purpose of disciplinary proceedings, and that the sanction imposed is protective and not punitive in nature.
28. [28]
    The Tribunal will have regard to the nature and seriousness of the conduct, evidence of insight and remorse, the need for specific and general deterrence and other mitigating factors such as evidence regarding the respondent’s medical or psychological state or other personal circumstances.
29. [29]
    In this case, the Tribunal has had regard to the fact that the fraud committed by the respondent is serious even though it did not involve her role as a nurse or patient care.  Nonetheless, it is accepted that these are offences of dishonesty which reflect adversely on the character of the respondent.
30. [30]
    The applicant notes a number of mitigating factors including that the respondent cooperated fully with police, pleaded guilty at the earliest opportunity and successfully completed a Queensland Traffic Offenders Program.
31. [31]
    The respondent had been suffering hardship as a result of workplace injuries to her husband with the consequence that he became reliant upon her to tend to his needs and care for their three young children.
32. [32]
    The timing of the husband’s injury corresponds with the period of offending which the Magistrates Court accepted exposed her to significant stress.  The Court took into account these circumstances in accepting that they provided context to the offending and went beyond financial gain.
33. [33]
    The Court found that the respondent was genuinely remorseful of her conduct, and that denunciation was likely to have had a meaningful impact and rendered her unlikely to commit offences of dishonesty again.
34. [34]
    It is in this context that the applicant submits that a reprimand is appropriate in the circumstances.  The Tribunal notes that a reprimand is not a trivial penalty.  It is a public denunciation of the practitioner’s conduct.  It is a matter of public record until the Board considers appropriate to remove the information from the public register.

Orders

35. [35]
    In all the circumstances the Tribunal makes the following orders pursuant to section 107 of the HO act:

1. Pursuant to s 107(2)(b)(iii) of the HO Act, in respect of allegation one, the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(2)(b)(ii) of the HO Act, in respect of allegation two, the respondent has behaved in a way that constitutes unprofessional conduct.
3. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
4. There is no order as to costs.