Health Care Complaints Commission v Ford

NCAT Occupational|2021-01-29

A nurse who forged prescriptions for controlled drugs and then lied to investigators about the extent of her conduct has been disqualified from nursing for 18 months. The Tribunal found that taking doctors' prescription pads and creating fake prescriptions for addictive medications was improper and unethical. Lying to the nursing regulator and complaints commission about how many prescriptions she had forged was also serious misconduct. Although the nurse was no longer registered, the Tribunal decided she would have cancelled her registration anyway because of the serious breach of trust. The 18-month disqualification takes into account that she admitted everything, showed remorse, was young at the time, and was going through significant personal stress, but also recognises the need to protect the public and send a message that such conduct is unacceptable.

Introduction

On 15 July 2020 the Health Care Complaints Commission (the Commission) applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Ms Ford, a health practitioner, on the grounds of unsatisfactory professional conduct and professional misconduct.

Tribunal proceedings

This matter has come before the Tribunal in the midst of COVID-19 pandemic restrictions. To reflect the public health measures deployed in response to the pandemic the hearing was conducted via audio visual link with the parties and two Tribunal members participating from different locations. Apart from Ms Ford, no other witnesses gave oral evidence.
Ms Ford admitted the complaints of unsatisfactory professional conduct and professional misconduct both in writing and, in oral evidence to the Tribunal. She admitted each and every particular of the individual complaints.

Evidence

The material provided by the Commission to support the Complaint includes but is not limited to the following: a self-notification made to the Australian Health Practitioner Regulation Agency (AHPRA) by Ms Ford in relation to her conduct at the Medical Centre, various witness statements from Medical Centre staff including Doctors A and B, the prescriptions forged and presented by Ms Ford, Medicare and PBS claims history produced by the Department of Human Services for Ms Ford and Person C, material relevant to the Medical Centres workplace investigation into Ms Ford's conduct including a notification made to AHPRA by her employer, a transcript of the interview between the Nursing and Midwifery Council of NSW (the Council) and Ms Ford which recorded the section 150 proceedings taken under the National Law into Ms Ford's conduct, correspondence from the Commission to Ms Ford and her response, and the Code of Conduct for Nurses issued by the Nursing and Midwifery Board of Australia, 1 March 2018.
The section 150 proceedings conducted by the Council took place on 27 May 2019. Section 150 proceedings occur in the context of the Council's obligation under the National Law to take action at any time if it is satisfied it is appropriate to do so for the protection of the health and safety of the public or for reasons otherwise in the public interest.
A decision record and written reasons for that decision were produced by the Council on 18 June 2019. The Council decided to impose public and private conditions on Ms Ford's nursing registration. Relevantly these conditions provided that Ms Ford not work as an enrolled nurse until reviewed by the Council.

The Complaints

Ms Ford's conduct came to light when she presented three prescriptions to a pharmacist who noted issues with the prescriptions. The pharmacist contacted the issuing Doctor who had purportedly written the prescriptions for verification. The Doctor confirmed that he had not issued the prescriptions.
With one exception all the details particularised in the first two individual complaints are demonstrated by the material provided by the Commission.
For Ms Ford's part she admits all the complaints and the particulars which support them. Ms Ford's position is to the effect that her conduct is sufficiently serious to justify cancellation and amounts to professional misconduct.
Holding to mind the exception that we have flagged of one particular which is contained in complaint two, we have no difficulty in finding the matters particularised in the first two complaints are established.

Complaint One

Ms Ford inappropriately took prescription pads belonging to Doctor A and Doctor B. Ms Ford used these prescription pads to forge and utter eight prescriptions, six prescriptions for herself and two prescriptions for Person C, as follows: 1. 24 February 2019, Diazepam 5mg (50) prescription date 23 February 2019 using Doctor A's prescription pad for herself 2. 24 February 2019, Endone 5mg (20) prescription date 23 February 2019 using Doctor A's prescription pad for herself 3. 9 March 2019, Diazepam 5mg (50) prescription date 6 March 2018 using Doctor A's prescription pad for herself 4. 28 March 2019, Duloxetine 60mg (28) prescription date 28 March 2019 using Doctor B's prescription pad for herself 5. 28 March 2019, Diazepam 5mg (50) prescription date 28 March 2019 using Doctor B's prescription pad for herself 6. 15 April 2019, Nitrazepam 5 mg (25) prescription date 9 April 2019 using Doctor B's prescription pad for herself 7. 15 April 2019, Oxycodone 5mg (20) prescription date 9 April 2019 using Doctor B's prescription pad for Person C 8. 15 April 2019, Diazepam 5mg (50) prescription date 9 April 2019 using Doctor B's prescription pad for Person C
We note that Endone and Oxycodone are Schedule 8 controlled drugs and Diazepam and Nitrazepam are Schedule 4D prescribed restricted substances under the Poisons and Therapeutic Goods Regulation 2008 (PTGR).
Medications that are listed as Schedule 8 controlled drugs under the PTGR are substances which are addiction producing or potentially addiction producing. Their possession, supply, prescribing and use are strictly limited. Schedule 4 Appendix D (S4D) medicines are prescription-only medicines that have common therapeutic uses, but are also liable to abuse, misuse and diversion. They also warrant stringent controls on possession and supply.
Ms Ford has a number of pre-existing medical conditions for which she has sought professional treatment. She has been on medication since she was 15 years old.
Ms Ford explained that the conduct particularised in complaint one occurred at a low point in her life. In the lead up to the conduct she was engaged to be married and was planning a wedding. In the midst of planning the wedding, and at the age of 22, she was told she was infertile. Ms Ford underwent fertility treatment. She admitted she did not handle her situation well. She said she had made a number of bad decisions by taking the prescription pads and using them for her own purposes.
Ms Ford had previously been legitimately prescribed the medications the subject of the complaint for existing conditions and pain management. She explained she had wanted to protect herself and her career by not admitting that she needed these medications to assist her in dealing with her mental health issues at the time.

Complaint Two

This complaint is about the provision of false information by Ms Ford to the Council and to the Commission.
During the s 150 proceedings conducted by the Council on 27 May 2019 Ms Ford provided information which she knew was false. This is demonstrated from the transcript of the s 150 proceedings and was admitted by Ms Ford. The information which was false is as follows: 1. That she had written on only one of the prescription pads, being the prescription pad belonging to Doctor B 2. That she had issued only three prescriptions, being the prescriptions referred to in complaint one particulars (f) to (h) 3. That she had not forged the signature of the doctor on the prescriptions made out in Person C's name as a different doctor had signed the prescription
The information given to the Council by Ms Ford was false because she knew that she had written prescriptions on both pads. Further, she had forged and uttered more than three prescriptions and in fact had forged eight prescriptions which formed the particulars of complaint one.
In the course of the Commission's investigation into Ms Ford's conduct the Commission put to Ms Ford that the complaint against her was that she had removed prescription pads belonging to Doctor A and Doctor B from her employer and fraudulently produced prescriptions in her name and Person C's name.
In response to these allegations Ms Ford gave information in a letter dated 5 August 2019. It was aspects of this letter which the Commission alleged was false and misleading, namely that: 1. She had written on only prescription pad belonging to Doctor B 2. She had only issued three prescriptions being the prescriptions referred to in complaint one particulars (f) to (h)
A close examination of the letter dated 5 August 2019 from Ms Ford to the Commission does not clearly state that she had only written on one prescription pad as she had previously stated in the s 150 proceedings. Indeed Ms Ford states in her response that she removed both prescription pads belonging to Doctor A and Doctor B from the workplace. In our view notwithstanding Ms Ford's admission of this particular, the particular is not proved by the evidence that the Commission relies upon. Accordingly we find that particular 3(a) of complaint two is not made out.
However, the information given by Ms Ford to the Commission detailed in (b) above was false and misleading because Ms Ford confined her response by stating that "three prescriptions were written" when she knew she had forged and uttered more than three prescriptions.
Ms Ford explained that although she knew she had forged and uttered more than the three prescriptions which she had admitted to the Council and to the Commission, she did not exactly know how many prescriptions she had forged and which medications were written on which prescription pads. In broad terms she also explained this lack of candour on the fact that she was scared.

Response to the complaint

Ms Ford acknowledged that her conduct was illegal and unethical. It reflected poorly on the profession of nursing, the individual doctors whose prescription pads she used and her workplace. She saw her conduct as an abuse of power and trust.
Ms Ford did not believe she deserved the right to work as a nurse. She was ashamed and remorseful for her conduct. She was grateful that her conduct was discovered before it escalated. She believed that if she had continued she would have been ruined.

Work history

Ms Ford completed her diploma in Nursing in 2015. She was first registered on 3 February 2015. Although she has had a number of nursing positions after graduation in the main these have been short term or casual roles.
After a three month placement as a new graduate in cardiothoracic nursing she started agency work as a casual. In 2016 she worked full time in a private mental health clinic for about 4-5 months, had a short break and then returned to work at the clinic as a casual. In 2017 she worked for 2-3 months as a casual in a mental health and detoxification residential facility run by NSW Health. After this she worked as personal carer in a retirement and nursing home and subsequently as a full time practice nurse for a pain specialist until she obtained a full time position at the medical clinic in September 2018 where the conduct the subject of the complaint occurred.
In June 2019 Ms Ford obtained full time work in childcare which she enjoyed. She continued this work until April 2020 when she left due to pregnancy. Ms Ford gave birth to her daughter in the third quarter of 2020.

Current circumstances

Ms Ford explained that her life had completely changed since the conduct the subject of the complaint had occurred. She had become a wife and mother. She had moved out of her family home. She lives with her husband and their child. She addresses her mental health issues. She has a new psychologist who works closely with her general practitioner. Her current medication regime is stable and during her pregnancy she ceased all medication.
In respect of Ms Ford's foreseeable plans she did not intend to return to nursing. She had not renewed her registration and as a result it had lapsed. She has not undertaken further professional development or education in nursing.

Complaints One and Two: Unsatisfactory Professional Conduct sections 139B(1)(l);

The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct."
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
In HCCC v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s. 139B(1)(l) stating at paragraphs 47 to 49: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
Ms Ford inappropriately removed prescription pads belonging to two general practitioners (Doctors A and B) at the Medical Centre at which she worked to forge and present eight prescriptions. Her conduct was calculated, repeated and dangerous. It was dangerous because she sought to obtain Schedule 4D and Schedule 8 PTGR medication which have stringent controls.
The Code of Conduct for Nurses produced by the National Board was in evidence before us and can be treated as evidence of what constitutes appropriate professional conduct or practice: see section 41 National Law.
The Code sets out values for nurses such as practising legally and specifically identifies that nurses should comply with poisons legislation and should not participate in unlawful behaviour. In relation to professional behaviour nurses should embody the values of integrity and honesty.
The forged prescriptions concerned Schedule 8 and Schedule 4D PTGR medications. Ms Ford's conduct was deliberate and involved not only herself but a family member. It shows a complete lack of moral compass and did not meet the standards of legal compliance and honesty that are expected of nurses.
Ms Ford's conduct was improper and unethical. She put her own interests ahead of her professional obligations to act with integrity.
When matters were put to Ms Ford by the Council and the Commission in the course of their investigations she misled them. She confined her responses to three prescriptions and was not candid as to the extent to which she had forged and uttered prescriptions.
It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81].
It was Ms Ford's duty to be candid and honest with the Council and the Commission. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of her to provide misleading information to both entities. By her actions she demonstrated a disregard for the Council and Commission, and their roles. Again Ms Ford failed to identify the moral dimension to her conduct. Her conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical.
We are satisfied that complaints one and two are established. Ms Ford's conduct constitutes unsatisfactory professional conduct under s 139B (l) of the National Law.

Complaint Three: Professional Misconduct section 139E of the National Law

The Commission submits that the conduct of Ms Ford which we have found constitutes unsatisfactory professional conduct, when considered in combination is of a sufficiently serious nature to amount to professional misconduct.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation": see paragraph 19.
In our view the unsatisfactory professional conduct of Ms Ford represents a significant departure from the standard of conduct to be expected of a nurse. It was improper and unethical for Ms Ford to forge prescriptions for restricted substances and controlled drugs. It had the potential to bring the profession of nursing into disrepute and undermine the confidence the public holds in relation to the practice of nursing.
Ms Ford then compounded her conduct with her lack of candour with the Council and Commission.
We find that the unsatisfactory professional conduct displayed by Ms Ford is of a sufficiently serious nature to constitute "professional misconduct" under s139E of the National Law.
We are satisfied that the complaint of professional misconduct as detailed in complaint three is proved.

Principles regarding protective orders

The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at 34.
In Health Care Complaints Commission v Do, [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration of protective orders

The complaints of unsatisfactory professional conduct and professional misconduct have been proved.
Having found the complaint of professional misconduct proven against Ms Ford, we may exercise powers to suspend or cancel her registration: see s. 149C(1) of the National Law.
In its submission the Commission sought an order that if Ms Ford had been registered, her registration as a nurse would have been cancelled and that she not be able to seek registration for a period of 18 months to 2 years.
In our view Ms Ford's conduct is serious. She inappropriately took two prescription pads, forged prescriptions and presented those prescriptions for supply. Because of that conduct she demonstrated an absence of propriety, honesty and integrity relating to the practice of nursing. Ms Ford was not candid and honest with the Council and the Commission. This is an integral part of the proper functioning of the regulatory system.
Ms Ford made full admissions in writing and in oral evidence. She attended the hearing and made herself available for cross examination by the Commission. She demonstrated insight and remorse into her conduct. We note that the conduct occurred when Ms Ford was quite young, namely 23 years old and at time when she was under significant stress.
Having regard to the seriousness of these matters together with the findings made above, we are satisfied that if Ms Ford were still registered we would have cancelled her registration. In our view she ought to be disqualified from being registered as a nurse for a period of 18 months. In our view this reflects an appropriate level of deterrence for the professional misconduct we have found proved in this case.

Costs

The Commission seeks an order for costs. The Commission has been successful on all but one of its sub particulars. This did not have an impact on the outcome of the Complaint. It has been wholly successful on the complaints of unsatisfactory professional conduct and professional misconduct. Accordingly an order for costs will be made in its favour.

Orders 1. Under s 149C(4)(a) of the National Law, if Ms Ford were still registered as a nurse, the Tribunal would have cancelled her registration. 2. Under s 149C(4)(b) of the National Law, Ms Ford is disqualified from being registered as a nurse for a period of 18 months from the date of this decision. 3. Under s 149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board to record the fact that had Ms Ford been registered, the Tribunal would have cancelled her registration for a period of 18 months from the date of this decision. 4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable. 5. Ms Ford is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. 6. Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the names, addresses or any other identifying information of Doctor A, Doctor B or Person C referred to in the evidence in the proceedings, is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021

Outcomeprocedural

Disposition:

The complaints of unsatisfactory professional conduct and professional misconduct were proved. Orders made: (1) If registered, registration would have been cancelled; (2) Disqualification from registration for 18 months; (3) Recording of cancellation fact by Nursing and Midwifery Board; (4) Notification to relevant authorities; (5) Costs to Commission; (6) Non-publication order regarding identities of Doctor A, Doctor B and Person C.

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