Health Ombudsman v Cash [2020] QCAT 49

Health Practitioner Regulation National Law (Queensland), s 5, s 130

Health Care and Complaints Commission v Shrimpton [2019] NSWCATOD 25

Nursing and Midwifery Board of Australia v Sotingco [2018] VCAT 1615

Nursing and Midwifery Board of Australia v Morely [2014] SAHPT 17

Peeke v Medical Board of Victoria unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993

C Templeton of counsel, instructed by the Office of the Health Ombudsman

[1] The Director of Proceedings on behalf of the Health Ombudsman ("the applicant") has referred a health service complaint against Josea Louise Cash ("the respondent") to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) ("HO Act"). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct and consequent orders for sanction. The respondent does not oppose the finding of professional misconduct and the parties jointly submit that an appropriate order for sanction is a reprimand.

[2] The respondent was registered as an enrolled nurse continuously between 1 July 2011 and 31 May 2017. The respondent did not apply to renew her registration before it lapsed on 31 May 2017 and has remained unregistered to date.

[3] The referral alleges three charges. Charge 1 is an allegation of professional misconduct as a consequence of criminal convictions. Charge 2, in the alternative, is an allegation of unprofessional conduct on the basis of the same facts. Charge 3 is an allegation of unprofessional conduct as a result of a contravention of s 130 of the Health Practitioner Regulation National Law (Queensland) ("National Law").

[4] From 25 October 2016 to 4 January 2017, the respondent was employed on a casual basis as an enrolled nurse at a residential aged care facility. The respondent was terminated from her employment, during a probation period, after failing to attend a meeting to discuss performance issues, it being presumed that she had abandoned her employment.

[5] On 3 February 2017 and 8 March 2017, the respondent was charged by police with offences of dishonesty relating to a credit card owned by a resident of the aged care facility where the respondent had previously been employed.

[6] On 3 May 2017, the respondent appeared before the Magistrates Court and entered pleas of guilty to one count of stealing the credit card and four counts of fraud constituted by the dishonest use of the credit card on 8 and 9 January 2017 as follows:

1. 8 January 2017, at a supermarket, purchasing goods to the value of $1;

2. 8 January 2017, at a supermarket purchasing goods to the value of $56.05,

3. 8 January 2017, at a petrol station purchasing fuel to the value of $31.13, and

4. 9 January 2017, booking a cruise holiday valued at $2,394, such booking soon after being cancelled, with a full refund given.

[7] With respect to the one offence of stealing and the four offences of fraud, no convictions were recorded and the respondent was ordered to complete 40 hours of unpaid community service and pay compensation in the amount of $88.18, being the total of goods purchased on 8 January 2017. The respondent subsequently completed the 40 hours of community service without any contravention of the order.

[8] The parties jointly submit that such conduct of the respondent should be characterised as professional misconduct within the terms of the definition of "professional misconduct" in s 5 of the National Law, being:

unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

[9] The respondent's conduct was a serious breach of the trust reposed in her by her employer and the resident of the aged care facility. Such dishonest conduct obviously should be characterised as professional misconduct. Charge 1 is proved to the Tribunal's satisfaction and the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

[10] Charge 3 relates to the respondent's failure to notify the Nursing and Midwifery Board of Australia ("the Board") of a relevant event. Pursuant to s 130(1) and s 130(3)(a)(i) of the National Law, the respondent was required to notify the Board within seven days of being charged with criminal offences punishable by 12 months imprisonment or more. All five of the offences with which the respondent was charged were offences punishable by 12 months imprisonment or more. The respondent did not give notice of the relevant event to the Board within such period. The Tribunal finds that the conduct the subject of charge 3 is proved to its satisfaction. The parties jointly submit that the conduct the subject of charge 3 should be characterised as "unprofessional conduct" as defined in s 5 of the National Law. It is conduct that should be regarded as aggravating the professional misconduct of the respondent and thus encompassed within the ultimate finding of professional misconduct.

[11] On 23 May 2017, the respondent advised the Office of the Health Ombudsman that she had not been employed since ceasing employment with the aged care facility and was not seeking to obtain work as a nurse because of the continuing investigation by the Office of the Health Ombudsman of her misconduct. On 25 August 2017, the respondent was advised of the Health Ombudsman's intention to impose an interim prohibition order pursuant to s 68(1) of the HO Act prohibiting her from providing any health service, paid or otherwise, in a clinical or non-clinical capacity. An interim prohibition order in such terms was confirmed by the Health Ombudsman on 24 October 2017.

[12] The respondent remained subject to that interim prohibition order until 28 June 2019 when the Health Ombudsman decided to revoke the order because there was then no evidence that the respondent's health, conduct or performance posed a serious risk to persons such that it was necessary for the order to protect public health and safety. The respondent has not subsequently sought re-registration, given the proceedings before this Tribunal, but instead has awaited the outcome of these proceedings. The respondent does hope to return to nursing once these proceedings are completed.

[13] As a consequence of her conduct, the respondent has not worked as a nurse for a period of about three years, of which about 20 months she was subject to the interim prohibition order. The parties submit, and the Tribunal accepts, that such period of time during which the respondent has removed herself from, and been prohibited from, engaging in nursing is a very relevant consideration as to an appropriate sanction for the respondent's misconduct.

[14] The respondent's misconduct was a serious breach of her duty towards a vulnerable resident of the aged care facility. It was a gross breach of the trust of her employer and that resident.

[15] Mitigating factors include the respondent's early pleas of guilty with respect to the criminal charges, her admission in these proceedings that her conduct amounts to professional misconduct, and her cooperation in expediting the proceedings before the Tribunal.

[16] Taking into account the period of time during which the respondent has not practised as, and has been prohibited from practising as, a nurse, and those mitigating factors, the applicant submits, and the respondent concurs, that an appropriate order for sanction is one of a reprimand. It is submitted that the penalty imposed upon the respondent in the criminal proceedings, and the substantial period during which she has not practiced as a nurse, and the denunciation by way of a finding of professional misconduct and a reprimand, are such as to adequately meet the deterrent purposes of sanction. No further preclusion from practice is required to meet the protective purposes of sanction. It will be a matter for the Board to assess the respondent's fitness to practise upon any application for re-registration.

[17] The parties' submission as to an appropriate sanction is supported by reference to comparative decisions of Health Care and Complaints Commission v Shrimpton [2019] NSWCATOD 25, Nursing and Midwifery Board of Australia v Sotingco [2018] VCAT 1615, and Nursing and Midwifery Board of Australia v Morely [2014] SAHPT 17.

[18] A reprimand is not a trivial penalty, and has the potential for serious adverse implications. It acts as a public denunciation of the conduct, and is a matter of public record, affecting the reputation of a practitioner. In Nursing and Midwifery Board of Australia v Sotingco ([2018] VCAT 1615 at [29]), the Victorian Civil and Administrative Tribunal noted the comments of Marks J in Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993) that a reprimand is a serious form of censure and condemnation.

[19] In determining an appropriate sanction for the respondent's misconduct, the health and safety of the public are paramount. The purpose of the disciplinary proceedings and any sanction imposed is protective, not punitive.

[20] The determination of sanction remains a discretionary matter between for the Tribunal, notwithstanding any agreement between the parties. However, the Tribunal ought not to depart from a proposed sanction agreed between the parties, unless it falls outside a permissible range of sanction.

[21] The Tribunal accepts that a reprimand is the appropriate order by way of sanction in this matter. The respondent's misconduct was a serious breach of her professional obligations and involved a gross breach of trust and deserves denunciation by the Tribunal.

[22] Both parties submit that there would be no reason for the Tribunal to depart from the ordinary position that the parties bear their own costs of the proceedings and that will be reflected in the orders of the Tribunal.

[23] Accordingly, the Tribunal orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Each party must bear the party's own costs for the proceeding.