Nursing & Midwifery Board of Australia v JHJ
[2025] QCAT 40
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- Nursing & Midwifery Board of Australia v JHJ[2025] QCAT 40
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Nursing & Midwifery Board of Australia v JHJ[2025] QCAT 40
Nursing & Midwifery Board of Australia v JHJ[2025] QCAT 40
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing & Midwifery Board of Australia v JHJ [2025] QCAT 40 |
PARTIES: | NURSING & mIDIWFERY BOARD OF AUSTRALIA (applicant) v JHJ (respondent) |
APPLICATION NO/S: | OCR166-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 12 November 2024 (ex tempore) 12 February 2025 (reasons as to costs) |
HEARING DATE: | 12 November 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Rinaudo AM Assisted by: Mr M Halliday Ms E McKibbin Ms B L Soong |
ORDERS: | THE TRIBUNAL ORDERS THAT:
is prohibited to the extent that it could identify or lead to the identification of a person that is or was a party or witness to a proceeding under the Domestic and Family Violence Protection Act 2012 (Qld), including the respondent, 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 to perform its statutory functions under the Health Practitioner Regulation National Law (Queensland), including its functions under ss 206, 206A and 232.
IT IS THE DECISION OF THE TRIBUNAL THAT:
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where an order is made to proceed at hearing in absence of the respondent – where the respondent has been disengaged from the proceedings – where the conduct the subject of the referrals is criminal in nature – where the respondent fails to notify Ahpra pursuant to s 130 of the National Law – where the conduct constitutes professional misconduct – where the applicant submits that the Tribunal should make a costs order against the respondent – where the respondent’s disengagement is indicative of a lack of insight and remorse – whether a costs order should be made against the respondent Bail Act 1980 (Qld) Criminal Code Act 1899 (Qld) Domestic and Family Violence Protection Act 2012 (Qld) Drugs Misuse Act 1986 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) Briginshaw v Briginshaw (1938) 60 CLR 336, 362 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M J Lucey instructed by McCullough Robertson Lawyers |
Respondent: | No appearance |
REASONS FOR DECISION
Non-attendance
- [1]Pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), I find that the respondent has not attended the hearing. By way of email dated 30 October 2024, the Tribunal Registry provided notice to the parties of the hearing occurring today in accordance with section 92 of the QCAT Act. Therefore, I find the Tribunal is satisfied that the respondent was given notice of the hearing and in the circumstances, I’ll determine to hear and decide the matter in his absence.
Introduction
- [2]The applicant, the Nursing and Midwifery Board of Australia (‘Board’), referred this disciplinary proceeding to the Tribunal on 29 June 2023. On 7 June 2024, the applicant commenced additional disciplinary proceedings against the respondent by way of a further referral (‘second referral’) to the Tribunal. On 23 August 2024, pursuant to s 54 of the QCAT Act, the Tribunal ordered that the second referral be consolidated into the initial referral.
- [3]The respondent has been disengaged in these proceedings including by failing to appear at a directions hearing to progress the matter in August 2024. By way of email dated 3 November 2023, the Respondent requested the applicant to “cease and desist” upon receiving an email regarding these proceedings. On 13 November 2023, the respondent told Ahpra that he ‘won’t require [his] ahpra registration anymore, shove it. Have a nice day’.[1] The respondent has not provided any material or submissions before the Tribunal.
- [4]By way of its submissions dated 20 September 2024, the applicant has limited its further submissions to addressing the content of the second referral, and then how it has otherwise altered the overall orders sought as expressed in its earlier submissions dated 5 April 2024. The Board repeats and relies upon its existing submissions dated 5 April 2024 to the extent that it sets out relevant principles around the applicable law, and the general background and the respondent’s antecedents.
- [5]
- [6]The respondent was, at all times material to the allegations the subject of the referral, a registered enrolled nurse. The respondent is not currently registered due to his registration lapsing earlier this year.
The grounds of the first referral
- [7]The Board tendered an amended referral at the Tribunal hearing. In the first instance, the allegations in respect of the respondent referred to the Tribunal the Board pursuant to s 193B of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) are as follows.
Ground one: criminal convictions and conduct
- [8]The Board alleges that the respondent engaged in professional misconduct or unprofessional conduct in that, on the occasions particularised below, the respondent was convicted of the following offences (and engaged in the underlying conduct for which he was convicted and sentenced on each occasion).
- [9]The respondent was convicted of the following offences:
- on or about 10 February 2021, in the Magistrates Court of Queensland at Beenleigh, breach of bail conditions contrary to s 21(1) of the Bail Act 1980 (Qld) (‘Bail Act’);
- on or about 5 July 2021, in the Magistrates Court of Queensland at Beenleigh:
- while a relevant drug is present in blood and saliva, drive motor vehicle, tram, train or vessel contrary to s 79(2AA)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld);
- three counts of contravene a Domestic Violence Order (‘DVO’) contrary to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’);
- stealing (domestic violence offence) contrary to s 398 of the Criminal Code Act 1899 (Qld) (‘Criminal Code Act’);
- on or about 25 October 2021, in the District Court of Queensland at Beenleigh:
- trafficking in dangerous drugs under s 5 of the Drugs Misuse Act 1986 (Qld) (‘DMA’);
- possess dangerous drug under s 9(1) of the DMA;
- on or about 6 December 2021, in the Magistrates Court of Queensland at Beenleigh, possess utensils or pipes etc for use contrary to s 10(2) of the DMA.
Ground two: breach of s 130 of the National Law
- [10]The Board alleges the respondent has engaged in professional misconduct or unprofessional misconduct by failing to provide the Board with notice of a ‘relevant event’[3] within seven days of becoming aware of the relevant event. The respondent failed to notify the Board when he was charged with the following offences, that are each punishable by 12 months imprisonment,[4] on the following dates:
- one count of contravention of a Domestic Violence Order contrary to s 177(2)(b) of the DFVPA on 26 July 2020;
- one count of contravention of a DVO contrary to s 177(2)(b) of the DFVPA on 26 July 2020;
- one count of contravention of a DVO contrary to s 177(2)(b) of the DFVPA on 7 September 2020;
- one count of stealing contrary to s 398 of the Criminal Code Act on or about 6 May 2021; and
- one count breach of bail conditions contrary to s 29(1) of the Bail Act between 14 January 2021 and 10 February 2021.
- [11]The Board suggests that the ongoing nature of the respondent’s offending and non-disclosure must be considered a significant aggravating feature of the totality of the conduct.
Ground three: cumulative conduct
- [12]The Board alleges that, to avoid doubt, the respondent engaged in professional misconduct within the meaning of paragraphs (a) and (b) and (c) of the definition of professional misconduct in s 5 of the National Law to the extent the conduct in grounds one and two above are considered cumulatively.
The grounds of the second referral
- [13]The intent of the second referral is to effectively align additional, like offending of the respondent which had not finalised at the time of the Board’s first referral top the Tribunal, but which the Board submits it is appropriate to all be dealt with together.
Ground one: criminal conviction and conduct
- [14]Ground one alleges the respondent engaged in professional misconduct or unprofessional conduct, as those terms are defined by the National Law, in that on or about 12 June 2023, Mr Hamilton was convicted (and engaged in the underlying conduct for which he was convicted and sentenced) in the Magistrates Court of Queensland at Beenleigh, of one (1) count of Contravention of Domestic Violence Order contrary to s 177(2)(b) of the DFVPA. No conviction was recorded and no further penalty imposed.
- [15]Prior to the respondent’s conviction, on 15 February 2023, the respondent was charged with the above offence.
Ground two: breach of section 130 National Law
- [16]Ground two alleges the respondent engaged in professional misconduct or unprofessional conduct, as those terms are defined by the National Law, in that the respondent failed to provide the Board with notice of a ‘relevant event’ on two occasions, within seven days of becoming aware of the ‘relevant event’ contrary to s 130 of the National Law. The ‘relevant events’ being:
- the respondent being charged with an offence punishable by 12 months imprisonment or more; and
- the respondent being convicted of an offence punishable by imprisonment.
The Board’s submission
- [17]As a result of the respondent’s further offending and the second referral, the Board sought overall relief against the respondent, namely:
- a global finding, dealing cumulatively with both the initial referral and the second referral, that pursuant to sections 196(1)(b)(iii) of the National Law, the respondent’s conduct amounts to professional misconduct within the meaning of paragraphs (a) and (c) as defined in s 5 of the National Law;
- pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded;
- pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for two years; and
- an order for the Board’s costs.
Discussion and Sanction
Characterisation of conduct and sanction
- [18]The conduct the subject of the referrals speaks for itself and, especially when viewed cumulatively, is capable of satisfying the threshold of professional misconduct. The Tribunal accepts the Board’s submission regarding the characterisation of the conduct.
- [19]As to sanction, the purpose of disciplinary proceedings is protective, not punitive. On 13 October 2020, the Board accepted an undertaking from the respondent not to practise. By virtue of this undertaking, the respondent has not practised since 13 October 2020. The Board notes this non-practising period is of ‘some relevance to sanction’ however submits that there is no evidence before the Tribunal that suggests the respondent ‘has reformed or that any risk to the public has been mitigated simply by not being able to practise the profession’.[5]
- [20]The Board submitted that the respondent’s lack of material engagement in both the initial proceedings and now the consolidated proceedings weigh adversely against him insofar as an assessment of any insight or remorse. The Tribunal accepts the Board’s submissions as to the appropriateness of a reprimand and disqualification from applying for registration as a registered health practitioner for two years.
Costs order
- [21]The Board submits that an order for costs should be made against the respondent because the Board is ‘out of pocket’ or has otherwise been disadvantaged due to the respondent’s positive refusal to engage in the proceedings.
- [22]The Tribunal does not accept the Board’s submission as to costs for the following reasons.
- [23]The relevant provisions of the QCAT Act are ss 100 and 102. The position is that no order for costs is to be made,[6] unless, relevantly the Tribunal considers, in accordance with s 102, that the interests of justice require it to do so.[7] It follows that it is necessary for the party seeking an order for costs to show that there is a sufficient basis under s 102 to depart from the position that there be no order as to costs.
- [24]As above, the respondent was not present at the hearing and has been disengaged from these proceedings since approximately 13 November 2023. The respondent has therefore not made any submissions in relation to costs.
- [25]The Tribunal is of the view that a costs order against the respondent would have a disproportionate and punitive effect on the respondent, particularly in circumstances where the respondent is disqualified from applying for registration for two years in the context of not practising his profession since 2020.
Orders
- [26]The Tribunal orders that:
-
Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication 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;
is prohibited to the extent that it could identify or lead to the identification of a person that is or was a party or witness to a proceeding under the Domestic and Family Violence Protection Act 2012 (Qld), including the respondent, 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 to perform its statutory functions under the Health Practitioner Regulation National Law (Queensland), including its functions under ss 206, 206A and 232.
-
Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
- a judicial member;
- a tribunal member;
- an associate appointed under the:
- Supreme Court Act 1991;
- District Court Act 1967;
- Land Court Act 2000; or
- Queensland Civil and Administrative Tribunal Act 2009;
- any assessor appointed to assist the Tribunal;
- the staff of the Tribunal registry;
- any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
- the parties to this proceeding.
- [27]It is the decision of the Tribunal that:
- Pursuant to s 93(2) of the QCAT Act, the Tribunal will hear and decide the matter in the absence of the respondent.
- Pursuant to s 196(1)(b)(iii) of the National Law, the respondent’s conduct that is set out in the various referrals constitutes professional misconduct.
- Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
- Pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for a period of two (2) years from the date of this order.
- No order as to costs.
Footnotes
[1] Second Hearing Bundle, filed 20 September 2024, 870.
[2] (1938) 60 CLR 336, 362.
[3] Health Practitioner Regulation National Law (Queensland) s 130(3) (definition of ‘relevant event’) (‘National Law’).
[4] As such, constitute a ‘relevant event’ as defined under the National Law (n 3) s 130(1)(a)(ii).
[5] Hearing Bundle (n 1) 4.
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.
[7] Medical Board of Australia v TXA (No 4) [2023] QCAT 360 [7] citing Marzini v Health Ombudsman (No 4) [2020] QCAT 365; Cowen v Building and Construction Commission [2021] QCATA 103.