Health Ombudsman v Carter [2019] QCAT 52

Health Practitioner Regulation National Law (Qld), s 5

Health Care Complaints Commission v Gillies [2010] NSW NMT 7

Health Care Complaints Commission v Nicholls [2010] NSW NMT 5

Medical Board of Australia v Jones [2012] QCAT 362

Health Ombudsman v Levick [2017] QCAT 88

Medical Board of Australia v Martin [2013] QCAT 376

Health Ombudsman v Kimpton [2018] QCAT 405

Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627

Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 2

[1] Ms Trica Anne Shannon Carter was a registered health practitioner as defined in s 5 of the Health Practitioner Regulation National Law (Qld) ("National Law"). She held registration as an enrolled nurse from 5 October 2001 until the surrender of her registration on 13 March 2017. She is no longer a registered health practitioner.

[2] The office of the Health Ombudsman received a notification from Ms Carter's then employer on 19 May 2016. A disciplinary referral was filed in the tribunal pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) on 18 May 2018. On 31 August 2018, Ms Carter filed a response to the disciplinary referral in which she admitted all the allegations it contained. There are no matters in dispute between the parties. The parties have filed a statement of agreed facts, and joint submissions. The parties agree as to the facts of the alleged conduct, that it constitutes professional misconduct and that an appropriate sanction would be a reprimand.

[3] From 10 December 2013 to 8 June 2016, Ms Carter was employed as an enrolled nurse at a Blue Care aged care facility. On 1 May 2016, Ms Carter was providing a health service to a 72 year old patient confined to a wheel chair with a physical impairment as a result of a stroke. Ms Carter shook the patient's head from side to side and/or from front to back in a very quick manner and poked the patient's ribs and pulled her nose.

[4] As a result of Ms Carter's conduct her employment was terminated, and she has not worked as an enrolled nurse since that time.

[5] As a result of her conduct, Ms Carter was charged with an offence of serious assault of a person over 60 contrary to s 340(1)(g) of the Criminal Code (Qld). Ms Carter pleaded guilty to the offence in the Magistrates Court. She was fined $750 and a conviction was not recorded. Ms Carter has no other criminal history or notification history.

[6] The parties jointly submit that Ms Carter's conduct constitutes professional misconduct. The parties jointly submit that Ms Carter's conduct in assaulting the patient in her care fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.[1] The Tribunal accepts such submissions and finds that Ms Carter has behaved in a way that constitutes professional misconduct.

[7] Ms Carter demonstrated insight and remorse:

**_(a) She made early admissions to having engaged in the conduct to both the police and the office of the Health Ombudsman;

(b) She has acknowledged that her conduct was wrong;

(c) She has indicated that she is remorseful for her conduct;

(d) She has admitted that her conduct amounted to professional misconduct; and

(e) Her co-operation in the conduct of proceedings before the Tribunal is consistent with her remorse._**

[8] Ms Carter is currently undertaking further studies in a different field and is uncertain about any return to the health profession. It is unlikely she will return to working in the health profession.

[9] In their joint submissions on sanction, the parties referred to the following comparative decisions:

**_(a) Health Ombudsman v Levick [2017] QCAT 88;

(b) Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627;

(c) Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 20;

(d) Health Care Complaints Commission v Gillies [2010] NSW NMT 7; and

(e) Health Care Complaints Commission v Nicholls [2010] NSW NMT 5._**

[10] The parties jointly submit that conduct of this type might ordinarily justify the imposition of a period of suspension or a period of disqualification from reapplying for registration as general deterrence to others, and to indicate to the profession and the public that such conduct is a serious departure from the standard expected of nurses. However, the respondent has not been practicing since May 2016 and subsequently surrendered her registration. Therefore, the parties jointly submit that having regard to the period of over two years during which Ms Carter has been effectively excluded from the profession as a consequence of her conduct, that no further period of preclusion is warranted to meet the protective purposes of sanction. The parties jointly submit that an appropriate sanction would be a reprimand.

[11] The Tribunal will not ordinarily depart from orders agreed between the parties unless they fall outside of permissible range of orders.[2]

[12] A reprimand is not a trivial sanction,[3] and a finding of professional misconduct together with a reprimand amounts to a public denunciation.[4] The Tribunal accepts the submissions of the parties that an appropriate order for sanction is that Ms Carter be reprimanded.

[13] The parties jointly submit that each party should bear their own costs.

[14] Accordingly, the Tribunal orders that:

**_(a) Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;

(b) Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; and

(c) Each party bear their own costs of the proceedings._**

[1] Limb (a) of the definition of professional misconduct in s 5 of the National Law_._

[2] Medical Board of Australia v Martin [2013] QCAT 376 at [91]- [93].

[3] Medical Board of Australia v Jones [2012] QCAT 362.

[4] Health Ombudsman v Kimpton [2018] QCAT 405 at [87].