Health Ombudsman v Brown [2019] QCAT 218

Health Practitioner Regulation National Law Act 2009 (Qld), s 5, s 109, s 130

Health Ombudsman v Barber [2017] QCAT 431

Health Ombudsman v Hardy [2018] QCAT 416

Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549

Psychology Board of Australia v GA [2014] QCAT 409

C Wilson instructed by the Director of Proceedings, on behalf of the Health Ombudsman

[1] DEPUTY PRESIDENT: This is a referral of a health service complaint against the respondent by the applicant, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 ("HO Act"). The applicant alleges that the respondent registered nurse engaged in professional misconduct by reason of him committing criminal offences unrelated to his practice as a nurse and by failing to notify the Australian Health Practitioner Regulation Agency (AHPRA) of being charged and convicted of offences in contravention of ss 109 and 130 of the Health Practitioner Regulation National Law Act 2009 ("National Law").

[2] The parties have agreed the relevant facts, including the facts alleged to constitute professional misconduct and jointly submit that the conduct should be characterised as professional misconduct. The parties both submit that the respondent should be reprimanded. The parties disagree as to whether any further order by way of sanction is required. The applicant submits that the respondent's registration should be suspended for a period of three to six months. The respondent submits that a suspension of his registration should not be ordered.

[3] The respondent is 33 years of age and 28 when the alleged conduct commenced. He completed a Bachelor of Nursing in 2010 and was registered as a registered nurse on 21 February 2011. He has no previous notifications on his registration history and had no criminal history prior to the relevant conduct. At the time of the conduct, he was employed as a registered nurse at a public hospital. On 17 February 2014, police charged the respondent with one charge of possession of dangerous drugs, one of possession of utensils or pipes and one of possession of property suspected of being proceeds of an offence.

[4] The respondent did not advise the Nursing and Midwifery Board of Australia ("the Board") of the offences with which he was charged, which constitutes a breach of s 130 of the National Law. Section 130(1) provides that a registered health practitioner must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board established for the practitioner's health profession written notice of the event. In s 130(3), relevant event is defined to mean, relevantly:

(i) The practitioner is charged...with an offence punishable by 12 months imprisonment or more; or

(ii) The practitioner is convicted of or the subject of a finding of guilt for an offence...punishable by imprisonment.

[5] In May 2014, the respondent submitted an online application to AHPRA for annual renewal of his registration as a registered nurse. The online application form contained the following question:

Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?

[6] The respondent answered no to such question. It may surprise some to know that this is a contravention of s 109(1) of the National Law, which provides that:

An application for renewal of registration must include or be accompanied by a statement that includes the following:

(a) Details of any change in the applicant's criminal history that occurred during the applicant's proceeding period of registration.

[7] Criminal history is defined in s 5 of the National Law as including not only every conviction of a person for an offence and every plea of guilty or finding of guilt by a Court of the person for an offence, but also in sub-paragraph (c) of the definition:

Every charge made against a person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this law.

[8] The respondent's answer to the question was thus false, as he had been charged with the three offences mentioned earlier. As it transpired, on 25 July 2014 police offered no evidence in relation to those charges and they were dismissed. On 10 October 2014, the respondent was charged with a number of offences of possession of dangerous drugs in relatively small quantities, but including one gram of methamphetamine, offences of unlawful possession of restricted drugs, possession of utensils or pipes, possessing restricted items, stealing, receiving tainted property and failing to properly dispose of a needle or syringe.

[9] The respondent's failure to advise the Board of those offences with which he was charged constituted a breach of s 130 of the National Law. On 28 November 2014, the respondent entered into a bail undertaking in respect to those charges. On 22 December 2014, he failed to report as required by the conditions of his bail undertaking, and on 23 December 2014, was charged with a breach of that bail condition. The respondent's failure to advise the Board of being charged with that offence constituted a further contravention of s 130 of the National Law. On 26 February 2016, the respondent was charged with offences of breach of bail condition, possession of utensils or pipes, failing to properly dispose of a needle and syringe, unlawful possession of restricted drugs and more significantly, possession of a dangerous drug, being 0.7 grams of methylamphetamine.

[10] On 3 March 2015, the Queensland Police Service advised the respondent's employer of the charges against the respondent, and on 4 March 2015, the respondent was suspended from his employment. The respondent contacted AHPRA the same day to notify them of the criminal charges and was able to notify them of that fact the following day. On 26 May 2015, the respondent submitted an online application to AHPRA for annual renewal of his registration as a registered nurse. In answer to the question:

Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?

[11] The respondent answered no, but in the comments field referred to charges of possession of dangerous drug, possession of restricted drug and stealing. This, nevertheless, is admitted by the respondent to amount to a contravention of s 109 of the National Law and conduct which, along with the other conduct alleged, amounts to professional misconduct.

[12] On 27 August 2015, the Board imposed conditions on the respondent's registration that he work in a position approved of by the Board and that he must not access any workplace drug storage facility or administer medications unless under the direct supervision of another registered nurse, who must be a nominated and approved supervisor who is required to provide monthly reports to the Board, and required the respondent to undergo a health assessment. The respondent correctly submits that that practically resulted in an inability for the respondent to continue his employment as a registered nurse. In any event, on 1 October 2015, the respondent's employer notified him that his suspension was to continue from that time without pay.

[13] On 12 October 2015, the applicant provided a positive test result for methylamphetamine after a random breath/drug test and license check while he was driving. He was subsequently charged with a traffic offence of driving whilst methamphetamine was present in his saliva. Given that the maximum penalty for such offence is three months imprisonment, pursuant to s 79(2A) of the Transport Operations (Road Use Management) Act 1995, the respondent was not obliged to report such charge to AHPRA. On 1 December 2015, the respondent pleaded guilty in the Southport Magistrates Court to two offences of breaching a bail condition, with six offences of possessing dangerous drugs, two offences of possessing utensils or pipes, one offence of possessing or acquiring restricted items, three offences of unlawful possession of restricted drugs, one offence of failing to properly dispose of a needle and syringe, and one offence of possessing tainted property. The police offered no evidence in respect of the other offences with which the respondent had originally been charged. In respect of the offences of unlawful possession of restricted drugs, convictions were recorded, but the respondent was not further punished. That is consistent with the types and quantities of drugs, placing those offences at the lowest range of seriousness for such offences. In respect of the remaining charges, the respondent was ordered to undergo 18 months' probation with specific conditions for drug testing and counselling, and convictions were not recorded. The failure of the respondent to advise the Board of those convictions constitutes a further contravention of s 130 of the National Law.

[14] The respondent provided a urine drug screening test on 7 January 2016, which tested positive for methylamphetamine and amphetamine. On 15 January 2016, the respondent was charged with shoplifting items from a hardware store. His failure to advise the Board of being charged with those offences of stealing amounts to a further contravention of s 130 of the National Law.

[15] On 2 February 2016, the respondent, by his legal representatives, notified AHPRA of the charges that were dealt with on 1 December 2015 for which he received the 18 month probation order. Pursuant to that probation order, the respondent commenced consultations with a psychologist and received further treatment at QuIHN treatment services.

[16] On 15 April 2016, the respondent pleaded guilty in the Southport Magistrates Court to the charges of driving whilst a relevant drug was present, and stealing from the hardware store, and was fined. The respondent did not advise the Board of his criminal conviction for stealing, which constituted another contravention of s 130 of the National Law.

[17] On 27 May 2016, the respondent submitted an online application to AHPRA for annual renewal of his registration as a registered nurse. He answered no in response to the question as to whether there had been any change to his criminal history. By answering no, the respondent failed to declare to AHPRA the fact that he had been charged with, and subsequently convicted of, the criminal offence of stealing, which was a contravention of s 109 of the National Law.

[18] On 16 June 2016, the Board considered a psychiatrist report following upon the ordered health assessment, and removed the conditions which had been imposed on 27 August 2015 by way of immediate action and imposed a new condition in terms that:

The practitioner must not practice as a registered nurse until such time as the practitioner is able to provide a clear hair drug screen, covering a minimum six month period, and provide written submissions showing adequate treatment for substance abuse disorder from his treating practitioners, including that the practitioner is safe to practice.

[19] On 13 July 2016, the respondent's employer, having been advised of the Board's decision, terminated the respondent's employment. The respondent has not since sought to satisfy the conditions for a return to practice. On 5 June 2018, the respondent applied for a non-practicing registration. Since 21 June 2018, the respondent has held a non-practicing registration. The conduct alleged to amount to professional misconduct is the six instances of contravention of ss 109 and 130 of the National Law, detailed above, and the two instances of conviction for criminal offences, as detailed.

[20] The applicant contends that because of such conduct, the respondent engaged in professional misconduct within the meaning of s 5(a) and (c) of the National Law in that he engaged in unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, and/or engaged in conduct that is inconsistent with the respondent being a fit and proper person to hold registration.

[21] The respondent accepts that he engaged in professional misconduct as defined in s 5(a) of the National Law, but does not accept that such conduct falls under s 5(c) of the National Law, in that he does not admit to his conduct being inconsistent with him being a fit and proper person to hold registration as a nurse. The applicant submits, following citing Health Ombudsman v Barber [2017] QCAT 431, that as there can be no doubt, and there is no dispute, that the conduct giving rise to the charges amounts to professional misconduct, it is not necessary to decide under which sub-paragraph of the definition the conduct falls. The Tribunal finds, as did the Tribunal in Barber, that as no particular consequence flows from a finding as to whether the misconduct meets the definition of professional misconduct under a particular sub-paragraph of the definition in s 5, that it is not necessary to resolve that dispute. Both parties jointly submit, and the Tribunal readily accepts, that the Tribunal should find that the respondent has engaged in professional misconduct.

[22] With respect to the purposes of sanction, it is convenient to cite the reasons of the Tribunal in Barber, at paragraphs [34] to [36]:

"In considering the appropriate sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. The jurisdiction being exercised by the Tribunal is protective, not punitive.

It has been accepted that protection of the public has various aspects. In Craig v Medical Board of South Australia, it was said,

The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable.

The order may be directed to remind the practitioner as to the seriousness of their departure from professional standards and so as to deter them from any further departure.18 It is however, not just confined to the erring practitioner, but extends to orders to secure the maintenance by other members of the profession of proper professional standards and to emphasise to them that certain types of behaviour are not acceptable professional conduct. Such orders also act to assure the public that appropriate standards are being maintained within the profession so as to maintain the confidence of the public in the high standard of the profession."

[23] It is appropriate that the respondent's misconduct be denounced by the Tribunal by way of a reprimand. The only substantial issue in dispute is whether orders for sanction should also include an order for suspension of the respondent's registration.

[24] Both parties have noted that the issue of any health impairment of the respondent is not before the Tribunal. The applicant submits that the issue of health impairment is to be managed by the Board, and that if the respondent was to apply for practicing registration, he will be required to meet all the Board's standards, including disclosure of criminal history, professional indemnity insurance, and recency of practice.

[25] In that sense, any issues of protection of the public by way of an assessment of the respondent's fitness to practice will be determined by the Board. In those circumstances, both parties submit that issues of rehabilitation are of no particular significance in consideration of sanction by the Tribunal. There is no need for a suspension of registration for an immediate protective purpose, nor, the applicant concedes, for purposes of personal deterrence.

[26] The applicant submits that an order of suspension of registration is appropriate for purposes of general deterrence, in that such an order would act as a general deterrence to other nurses, and send the message that criminal conduct will not be tolerated by the profession, and neither will failures to notify the Board of criminal charges and convictions.

[27] The applicant further submits that an order for suspension of registration is appropriate to maintain public confidence in the profession, and maintain the reputation of the profession. A matter of some significance in considering the parties' contentions with respect to an order for suspension of registration is the relevance of the registration history of the respondent since the time of the misconduct.

[28] The applicant has referred to a number of decisions of the Tribunal, to the effect that it is not always appropriate to regard a voluntary cessation of practice as equivalent to a de facto suspension, which might mitigate orders for sanction.[1]

[29] The applicant referred to the reasons of the Tribunal in Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549, at [31], where the Tribunal noted that it was not a case there where the respondent had voluntarily withdrawn herself from practice in recognition of her own misconduct. And in this case, the respondent was effectively prevented from practicing because of the imposition of conditions upon his registration. Notwithstanding his subsequent application for non-practicing registration, this case should not be regarded as one where there was a voluntary cessation of practice. It is not one of those cases, therefore, where it should be regarded as a de facto suspension of practice, indicative of insight and remorse.

[30] Nevertheless, the conditions placed upon the respondent's registration and his subsequent application for non-practicing registration has meant that he has, effectively, been prevented from carrying out his profession as a registered nurse for a period approaching four years.

[31] In accordance with the reasons of the Tribunal in Jacobsen at [30], some allowance should be made for that substantial period in which the respondent has been unable to secure work after the conditions were imposed by the Board. That is notwithstanding that the conditions may have been imposed by reason of the Board managing concerns as to a health impairment of the respondent.

[32] Realistically, as a result of his criminal conduct, which bases the referral and finding of professional misconduct, the respondent has been effectively prevented from practicing since the imposition of conditions on his registration on 27 August 2015. It will be apparent from the Tribunal's reasons that any example to be made of the respondent, for reasons of general deterrence, must be viewed in the context of that fact.

[33] Some allowance should be made for that factor, and that factor does militate against the need for a suspension of registration to meet the protective purposes of sanction. Other relevant factors in considering sanction include that the criminal offending was at the lower range of seriousness of such offences. Certainly at a lower order than other cases referred to the Tribunal, in which suspensions of registration have been ordered, several of which have been referred to by the parties.

[34] Further, the respondent cooperated with the criminal process by way of his pleas of guilty, and with the consequent rehabilitative process of probation. He has also cooperated with the conduct of these proceedings before the Tribunal by way of agreed facts, and his admission of professional misconduct. His conduct of these proceedings does demonstrate some insight on the part of the respondent into the seriousness of his misconduct.

[35] In all the circumstances, the Tribunal considers that a period of suspension is not necessary. The need to emphasise the importance of maintaining professional standards, and of general deterrence, are able to be met by way of the finding of professional misconduct and the reprimanding of the respondent.

[36] The applicant has not sought the costs of the proceedings, and in those circumstances, the normal position, pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 should apply, with each party bearing their own costs of the proceedings.

[37] Accordingly, the Tribunal orders that:

• (a) pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct;
• (b) pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded; and
• (c) each party must bear the party's own costs for the proceeding.

[1] See Psychology Board of Australia v GA [2014] QCAT 409, at [38] - [40], and Health Ombudsman v Hardy [2018] QCAT 416, at [34] - [36].