Nursing and Midwifery Board of Australia v BCD (No 2)
[2025] QCAT 8
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v BCD (No 2)[2025] QCAT 8
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Nursing and Midwifery Board of Australia v BCD (No 2)[2025] QCAT 8
Nursing and Midwifery Board of Australia v BCD (No 2)[2025] QCAT 8
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v BCD (No 2) [2025] QCAT 8 |
PARTIES: | Nursing and Midwifery Board of Australia (applicant) v BCD (respondent) |
APPLICATION NO: | OCR 338 of 2022 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 January 2025 |
HEARING DATE: | 21 October 2024 |
FURTHER SUBMISSIONS: | 6 December 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Dick SC Assisted by: Ms E McKibbin, Nursing Panel Member Ms S Hopkins, Nursing Panel Member Mr M Halliday, Public Panel Member |
ORDERS: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was convicted of fraud offences against a patient – where the Tribunal has made findings as to fact and characterisation – what is the appropriate sanction – where the respondent’s registration has lapsed – disqualification and reprimand Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Craig v Medical Board of South Australia (2001) 79 SASR 545 Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 Health Ombudsman v Fletcher [2020] QCAT 478 Health Ombudsman v McCarthy [2021] QCAT 79 Health Ombudsman v Skobe [2020] QCAT 196 Health Ombudsman v Vale [2020] QCAT 363 Medical Board of Australia v Dodds [2024] QCAT 68 Nursing and Midwifery Board of Australia v BCD [2024] QCAT 485 Nursing and Midwifery Board of Australia v Abdulkadir (Review and Regulation) [2020] VCAT 1446 Peeke v Medical Board of Victoria [1994] VicSC 7 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
Applicant: | J Liddle instructed by Piper Alderman |
Respondent: | No appearance |
REASONS FOR DECISION
- [1]On 21 October 2024, I gave an ex tempore judgment in this matter in respect of the facts and characterisation in this disciplinary referral.[1] The respondent did not appear at that hearing despite having received notice of it and I ordered that the matter be heard and determined in her absence.
- [2]I made findings that the Board had proved the conduct as alleged and that it amounted to professional misconduct in respect of the criminal convictions of fraud (ground 1) and unprofessional conduct in respect of the failure to notify the Nursing and Midwifery Board of Australia (Board) or Australian Health Practitioner Regulation Authority (Ahpra) of the charges (ground 2).
- [3]The hearing was adjourned to allow for written submissions in respect of sanction to be provided. The Board filed its written submissions on 5 December 2024. The respondent was given until 4:00pm on 20 December 2024 to file her written submissions, if any. None have been filed.
Sanction
- [4]Having made findings in accordance with s 196(1)(b) of the Health Practitioner Regulation National Law (Queensland) (National Law), I may make further orders as to the appropriate sanction under s 196(2)–(4). Relevantly, here, the respondent does not presently hold registration.
- [5]In determining the appropriate sanction, I must consider that disciplinary proceedings are protective in nature, not punitive. A sanction may seek to achieve one or more of the following purposes:[2]
- the maintenance of standards of practitioners in the health profession;
- the denunciation of inappropriate conduct by the relevant regulatory body and ;
- personal and general deterrence;
- the protection of the public; and
- the protection of the public confidence in the safety of services provided by registered health practitioners.
- [6]In determining the appropriateness of a particular sanction, I may consider:[3]
- the nature and seriousness of the conduct;
- whether the practitioner acknowledges culpability and any evidence of insight, contrition or remorse;
- the practitioner’s professional and disciplinary history;
- evidence of character;
- evidence of rehabilitation;
- any delay between the conduct, investigation, and the conclusion of proceedings in the Tribunal; and
- any other mitigating factors.
Comparative cases
- [7]The Board refers to comparative cases in its submissions. Whilst each case turns to be decided on its own facts, these cases are nonetheless useful as “yardsticks”. The Board refers the Tribunal to:
- [8]All of the comparatives (with the exception of Shipley) were frauds or thefts involving much lower amounts than in the present case. In each, cancellation of registration (where the practitioner maintained registration) and a period of disqualification was imposed on the practitioner.[9]
- [9]The Tribunal considers Shipley and McCarthy to be of the most assistance in the present case.
- [10]In Shipley, the practitioner, an enrolled nurse, stole a bank card from an 80-year-old patient of a psychogeriatric unit and used it to withdraw cash totalling $14,352.00 from ATMs on 26 occasions, provided false information to the Board, and failed to notify the Board of criminal charges under s 130 of the National Law.[10] The practitioner admitted to the conduct before the Tribunal. The Tribunal found that the conduct constituted professional misconduct, cancelled the practitioner’s registration, disqualified her from applying for registration for three years and prohibited her from providing relevant services until obtaining registration as an enrolled nurse.
- [11]In McCarthy, the practitioner stole $720 from a patient’s wallet whilst looking through the patient’s belongings (with his consent) to search for his medications. The practitioner was charged with stealing and convicted on her own plea of guilty. The Tribunal found that the practitioner had engaged in professional misconduct and disqualified her from applying for registration for 12 months. Relevantly, the practitioner had allowed her registration to lapse, and the Tribunal accepted that the lapse was not a de facto suspension, in light of the lack of rehabilitation undertaken and insight and remorse shown by the practitioner.[11]
Consideration
- [12]The respondent has no disciplinary history and has not held registration since 31 May 2020. The Board submits, and I accept, that the conduct was serious, in that, it involved a significant sum of money taken fraudulently from a vulnerable patient for whom the respondent had caring responsibilities, and required some planning to carry out.
- [13]I also accept that, notwithstanding her guilty pleas, the respondent has not shown any appreciable insight into or contrition or remorse for her conduct. This is apparent from the respondent’s refusal to engage meaningfully with the proceedings before the Tribunal and her email to a representative of Ahpra to the effect that “she had only pled guilty due to legal advice because she could not afford a trial”.[12] There is also no evidence of rehabilitation or character before the Tribunal.
- [14]The respondent’s period without registration cannot be considered a “de facto” suspension. The respondent allowed her registration to lapse, rather than surrendering it, or it having been subject to conditions preventing practice by way of immediate registration action. The lapse can also not be considered to be accompanied by any time spent on rehabilitation, as I have discussed.[13] I am satisfied that, absent any evidence before the Tribunal of rehabilitation, the conduct which is established supports the view that the respondent is not a fit and proper person to hold registration, and the only appropriate sanction is one of disqualification from applying for registration for a period of 18 months, as the Board submits.
- [15]The Board also submits that the Tribunal ought to impose a reprimand. A reprimand is far from a trivial penalty, and, to a professional person, has the potential for serious adverse implications.[14] In the event the respondent obtains registration in the future, the reprimand may be recorded in the National Register in the event that the Board deems it appropriate at that time.[15] I am satisfied that a reprimand is appropriate.
Orders
- [16]For the above reasons, the Tribunal imposes the following sanction:
- The respondent is reprimanded.
- The respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months.
Footnotes
[1]Nursing and Midwifery Board of Australia v BCD [2024] QCAT 485.
[2]National Law s 3A; Medical Board of Australia v Dodds [2024] QCAT 68 (‘Dodds’), [22] referring to Craig v Medical Board of South Australia (2001) 79 SASR 545, 553–555.
[3]Dodds, [23] citing Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, [43].
[4][2020] QCAT 196 (‘Skobe’).
[5][2020] VCAT 1446 (‘Abdulkadir’).
[6][2020] NSWCATOD 128 (‘Shipley’).
[7][2021] QCAT 79 (‘McCarthy’).
[8][2020] QCAT 478 (‘Fletcher’).
[9]Except for Abdulkadir, in which the Tribunal prohibited the practitioner from providing services in aged care and Fletcher, which involved a significantly smaller sum of money and proceeded by way of agreement.
[10]The criminal charges against the practitioner in Shipley were ultimately discontinued.
[11]Cf Fletcher, [29]–[30].
[12]Email from the respondent to Ahpra dated 27 October 2020, Hearing Bundle p 65.
[13]See Health Ombudsman v Vale [2020] QCAT 363, [19]–[29].
[14]Peeke v Medical Board of Victoria [1994] VicSC 7.
[15]National Law ss 225(j) and 226(3).