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Nursing and Midwifery Board of Australia v HNZ[2025] QCAT 38

Nursing and Midwifery Board of Australia v HNZ[2025] QCAT 38

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v HNZ [2025] QCAT 38

PARTIES:

Nursing and midwifery board of australia

(applicant)

v

HNZ

(respondent)

APPLICATION NO/S:

OCR272-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 February 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones

Assisted by:

Ms E McKibbin

Mr S Simpson

Mrs K Thomson

ORDERS:

THE TRIBUNAL ORDERS THAT:

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
    1. the contents of a document or other thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal;
  2. is prohibited to the extent that it could identify or lead to the identification of the respondent or the complainant of the conduct in the referral save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
  3. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to these proceedings or any appeal or review arising from these proceedings.

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. Pursuant to s 196(1)(b)(iii) of the National Law, the respondent’s conduct amounts to professional misconduct within the meaning of paragraph (c) as defined in s 5 of the National Law.
  2. Pursuant to s 196(2)(a) of the National Law, the respondent be reprimanded.
  3. Pursuant to s 196(4)(a) of the National Law, the Tribunal disqualifies the respondent from applying for registration as a registered health practitioner for a period of eight (8) years.
  4. Pursuant to s 196(4)(b) of the National Law, the respondent be prohibited from providing, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, any health service until he obtains registration as a health practitioner.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent pleaded guilty to a historical child sexual offence – where the child was a close relative – where the respondent has not practised since 2019 – where there is evidence the respondent suffers with mental health issues – whether the respondent’s registration should be disqualified for a specified period

Criminal Code Act 1899 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Warren [2022] QCAT 124

Medical Board of Australia v Nicholas [2022] SACAT 98

Nursing and Midwifery Board of Australia v FH [2010] QCAT 675

Nursing and Midwifery Board of Australia v MTZ [2018] VCAT 1821

Nursing and Midwifery Board of Australia v TFQ (Review and Regulation) [2021] VCAT 1176

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This proceeding is concerned with an application brought by the Nursing and Midwifery Board of Australia (‘Board’) against the respondent who at all material times was a registered nurse. 
  2. [2]
    The facts and circumstances that bring this matter before the Tribunal are set out in the agreed statement of facts and can be stated as follows.
  3. [3]
    On or about 9 April 1981 the respondent was first registered as a nurse.  For reasons which will become apparent, he is not presently registered as a nurse, his general registration ceasing on 31 May 2019.  The respondent has expressed an intention to never return to the nursing profession.  For reasons, again, which will become apparent in due course, that is unsurprising, particularly having regard to the respondent’s age, having been born in April 1954. 
  4. [4]
    On 24 June 2021, the Australian Health Practitioner Regulation Agency (‘Ahpra’) received a notification from the Office of the Health Ombudsman outlining that the respondent had been charged with a historical child sexual offence.  More specifically, he had been charged under section 210(1)(a) of the Criminal Code Act 1899 (Qld) for the indecent treatment of a child under 16.  On 11 August 2023, the Board decided to refer the matter to the Tribunal. 
  5. [5]
    The ground which the Board relies on is said to be as follows:

The respondent engaged in (a) professional misconduct within the meaning of paragraphs (a), (b) and/or (c) of the definition of professional misconduct in section 5 of the [Health Practitioner Regulation National Law (Queensland) (‘National Law’)]; and/or (b) engaged in unprofessional conduct as that the term is defined under the National Law.

  1. [6]
    The conduct can be summarised as follows.  On a date unknown between 4 June 2013 and 18 July 2013, the respondent did unlawfully and indecently deal with a child as follows.  The child was the daughter of the respondent’s first cousin.  The respondent, at the time, had attended the home of the child to watch a rugby league State of Origin game.  Also present at that time were the child’s parents and the aunty of the child. 
  2. [7]
    During the course of the evening when the parents of the child had left the living room, the respondent sat next to the child.  He then had the child sit on his lap, at which time he slipped both his hands under her shirt, moved his hands up and touched the child’s breasts and nipples.  He then went on to put his hands under the child’s shorts and/or underwear and touched her vagina and clitoris.  At the time of the conduct, the child was 12 years of age.
  3. [8]
    On or about 23 March 2022, the respondent was indicted on two counts of indecent treatment of a child under 16.  On or about 22 August 2022, the respondent pleaded guilty to both counts and was convicted and sentenced in the District Court of Queensland:
    1. in respect of count 1, imprisonment for a period of 18 months to be wholly suspended for an operational period of two years;
    2. in respect of count 2, probation for a period of two years, and that he be registered as a reportable offender for a period of four years. 
  4. [9]
    The respondent does not dispute any of the allegations concerning the child.
  5. [10]
    It can be said that the respondent has been cooperative in bringing these proceedings to a conclusion.  He pleaded guilty to both charges for which he was sentenced.  He has surrendered his registration as a nurse.  Apart from participating in the agreed statement of facts, he has otherwise indicated that he does not intend to participate further in the proceedings.
  6. [11]
    The relief that the Board originally sought was as follows: 

The Tribunal may make one or more of the following determinations pursuant to section 196(2) of the National Law: 

  1. that the respondent be cautioned or reprimanded;
  2. that the respondent be required to pay a fine of not more than $30,000 to the Board;
  3. that the respondent be disqualified from applying for registration as a registered health practitioner for a specified period;
  4. that the respondent be prohibited either permanently or for a stated period from doing either or both of the following: 
    1. providing any health service or a specified health service under section 96(4)(a); or
    2. using any title or specified title under section 196(4)(b).
  1. [12]
    Subsequently, though, in the written submissions filed on behalf of the Board, the relief sought is as follows: 
    1. pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal finds that the respondent’s conduct amounts to professional misconduct within the meaning of paragraph (c) as defined in section 5 of the National Law;
    2. pursuant to section 196(2)(a) of the National Law, the respondent be reprimanded;
    3. pursuant to section 196(4)(a) of the National Law, the Tribunal impose a period of disqualification of eight years;
    4. pursuant to 196(4)(b) of the National Law, further order that the respondent be prohibited from providing, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, any health service until he obtains registration as a health practitioner.
  2. [13]
    In respect of that last order, this would necessarily require the respondent to satisfy the Board that his mental health issues have been satisfactorily resolved. 
  3. [14]
    On balance, the Tribunal is of the view that a non-publication order ought to be made in the following terms: 

the Tribunal orders that pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of

(a)the contents of a document or other thing filed in or produced to the Tribunal;

(b)evidence give before the Tribunal;

(c)any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of either the respondent or the complainant of the conduct in the referral.

  1. [15]
    Such order is to be in the usual terms.
  2. [16]
    It is beyond contest that the conduct of the respondent falls grossly below the standards expected of a professional nurse and constitutes professional misconduct.  The indecent dealing of a child is a particularly abhorrent event and made all the more so when committed by a person whose role it is to protect the health and wellbeing of the public, let alone one closely related.  More will be said about that in a moment.
  3. [17]
    For the benefit of the sentencing judge, a report was prepared by a consultant psychiatrist which revealed an extremely troubled past on the part of the respondent.  Under the heading “Opinion”, the consultant psychiatrist reported: 

[The respondent] is a 68-year-old separated and retired registered nurse.  His personal history is prejudicial and characterised by parental conflict.  In his thirties, he developed Major Depressive Disorder and for the following twenty years suffered from depression and occasional hypomanic episodes, which were not detected at the time.  It was only in his early fifties that [the respondent] was diagnosed with Bipolar Affective Disorder and commenced appropriate treatment.  His condition is chronic and episodic and his prognosis is relatively guarded although, the stability can be maintained, as long as he remains under close psychiatric management. 

In addition to his Bipolar Affective Disorder, [the respondent] has been diagnosed with Alcohol Misuse and Dependence that are currently in remission.  He stopped drinking in January 2022. 

[The respondent] has also been diagnosed with a number of medical problems.  When he was younger, he was treated with electroconvulsive therapy (ECT) for depression.  For a number of years, [the respondent] has been under the care of private psychiatrist, Dr [KD].  His current medications are consistent with his medical psychiatric diagnoses.

  1. [18]
    The psychiatrist went onto observe:

Following his discharge, [the respondent] has experienced further suicidal ideations and depression in the context of multiple losses, sleep impairment and the prospect of a custodial term.  At the time of the examination, his mental state was still fragile but more stable, and he was no longer acutely suicidal. 

[The respondent] states that he was intoxicated at the time when his alleged offending occurred and has no memory of committing the alleged offence.  It is likely that alcohol served as a disinhibiting factor, depriving him of the capacity to control his behaviour, in particular in combination with painkillers and benzodiazepines, which would also explain his memory loss. 

In the absence of alcohol intoxication, it appears that [the respondent’s] risk of future offending is relatively low.

  1. [19]
    Under the heading “Recommendations”, the psychiatrist made the following observations: 
  1. [The respondent] suffers from mental infirmity, namely Bipolar Affective Disorder.
  2. [The respondent’s] condition is chronic and of relatively severe nature.  His prognosis is guarded.
  3. [The respondent] will require ongoing psychiatric treatment and follow up.
  4. Because of his complicated medical and psychiatric conditions, it is anticipated that a period of imprisonment would be more onerous [for the respondent] than for [the] average inmate.
  5. [The respondent] will require a referral to the Prison Mental Health Service (PMHS) for the ongoing management of his psychiatric illness in custody.
  1. [20]
    A number of comparatives were put before the Tribunal for the Board.  Those comparatives are as follows: 
    1. Nursing and Midwifery Board of Australia v FH [2010] QCAT 675;
    2. Health Ombudsman v Warren [2022] QCAT 124;
    3. Medical Board of Australia v Nicholas [2022] SACAT 98 (‘Nicholas’);
    4. Nursing and Midwifery Board of Australia v TFQ (Review and Regulation) [2021] VCAT 1176 (‘TFQ’); and
    5. Nursing and Midwifery Board of Australia v MTZ [2018] VCAT 1821 (‘MTZ’).
  2. [21]
    Some of the comparatives referred to involved more serious offending and others less serious.  An example of the former is Nicholas, where the medical practitioner was convicted of two serious criminal offences against a child victim.  At the time, the respondent was a registrable offender under the Child Sexual Offenders Registration Act 2006 (SA) and had a reporting obligation for a period of 15 years.  The practitioner did not participate in the Tribunal proceedings at any stage.  It could be said that the Tribunal was fully satisfied that the complaint allegations were all established and that the respondent had the ability to participate in a full hearing.  The Tribunal considered that the significance of the respondent being a registrable child sex offender to be a particularly aggravating feature.  The Tribunal held that the practitioner’s conduct amounted to professional misconduct.  He was reprimanded, his licence cancelled, and it was further ordered that a period of disqualification of 11 years be imposed with a parallel prohibition order for a period of 11 years against providing any health service.
  3. [22]
    Another example is the reasons given in the case of TFQ.  TFQ involved a nurse convicted while registered of child sex offences.  There were three charges of actual sexual penetration of a child under 16 and two charges of an indecent act with a child under the age of 16.  The offending took place before the practitioner was registered as a nurse.  The practitioner was sentenced to six years and nine months imprisonment.  She was also declared a registrable sex offender under the Sex Offenders Registration Act 2004 (Vic) for a period of 15 years.  The matter was able to be dealt with by a position of agreed facts and admissions.  The parties proposed a disqualification period of 12 years.  Ultimately, however, the Tribunal considered it preferable to order that the practitioner to be reprimanded, her registration be cancelled, a disqualification of 15 years be imposed, and ordered that the practitioner be prohibited for a period of 15 years from the date of the Tribunal’s order from engaging in or providing any health service, particularly insofar as it might affect children.
  4. [23]
    An example of the latter is that of MTZ.  In that case, the offending involved a registered nurse.  The victim was a 14-year-old child.  The respondent had kissed the victim and touched her on the outside of her clothing.  In that case, the Tribunal considered that an appropriate outcome was that the respondent be reprimanded without imposing any further sanction.  Particularly aggravating features of the subject offending, apart from the age of the victim, a 12-year-old girl, include:
    1. the victim was a relative of the respondent, being the daughter of the respondent’s first cousin;
    2. it involved a number of instances of direct skin-on-skin contact; and
    3. the sheer audacity of the offending which occurred while the child’s parents had temporarily moved into another room within the house. 
  5. [24]
    On balance, the Tribunal has reached the conclusion that the orders and sanctions ought to be as follows:
  1. pursuant to 196(1)(b)(iii) of the National Law, the respondent’s conduct amounts to professional misconduct within the meaning of paragraph (c) as defined in section 5 of the National Law;
  1. pursuant to 196(2)(a) of the National Law, the respondent be reprimanded;
  2. pursuant to 196(4)(a) of the National Law, the Tribunal disqualifies the respondent from applying for registration as a registered health practitioner for a period of eight (8) years; and
  3. pursuant to 196(4)(b) of the National Law, the respondent be prohibited from providing, whether as an employee, contractor, manager or volunteer, and whether directly or indirectly, any health service until he obtains registration as a health practitioner.
  1. [25]
    The Tribunal is granting the application for a non-publication order in the following terms:
  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
    1. the contents of a document or other thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal;
  1. is prohibited to the extent that it could identify or lead to the identification of the respondent or the complainant of the conduct in the referral save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the National Law. 
  2. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to these proceedings or any appeal or review arising from these proceedings.
Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v HNZ

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v HNZ

  • MNC:

    [2025] QCAT 38

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Jones

  • Date:

    19 Feb 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Health Ombudsman v Warren [2022] QCAT 124
2 citations
Jump To
Cite 1 - [2022] QCAT 124
Cite 2 - [2022] QCAT 124
Nursing and Midwifery Board of Australia v FH [2010] QCAT 675
2 citations
Jump To
Cite 1 - [2010] QCAT 675
Cite 2 - [2010] QCAT 675

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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