Health Ombudsman v Chaffey [2020] QCAT 54

[1] The Director of Proceedings on behalf of the Health Ombudsman ("the applicant") has referred a health service complaint against Sara Chaffey ("the respondent") to the Tribunal pursuant to s 103(1)(a) and 104 of the Health Ombudsman Act 2013 ("HO Act"). The applicant seeks findings of professional misconduct and unprofessional conduct and orders by way of sanction.

[2] The respondent is 44 years of age and was aged 41 at the time the Office of the Health Ombudsman received a notification regarding her conduct. The respondent first obtained registration as a registered nurse in 2011. The respondent has no prior disciplinary history and no criminal history apart from that related to the conduct the subject of the referral.

[3] The referral particularises two "Allegations".

[4] Allegation 1 is an allegation of professional misconduct constituted by criminal offending of the respondent by way of social security fraud.

[5] Between August 2011 and April 2015, the respondent failed to correctly declare the amount of her employment income to Centrelink while in receipt of a single parenting payment benefit. Such failure resulted in the respondent receiving an overpayment of $64,549. During the relevant period, the respondent reported her income to Centrelink on a fortnightly basis. During such period, the respondent made 55 false declarations of nil income and 10 false under-declarations of income. On 31 occasions, the respondent failed to advise Centrelink of the income she had earned whilst working as a registered nurse. The practitioner received over $290,000 income during the relevant period, but only declared $9,474 of that income. The respondent's conduct was detected by way of data matching between Centrelink and the Australian Taxation Office.

[6] The respondent was charged with the offence of dishonestly obtaining a financial advantage, contrary to s 134(2) of the Criminal Code 1995 (Cth). The respondent entered a plea of guilty to that charge in the Magistrates Court on 20 January 2017. On 26 May 2017, she was sentenced to two years' imprisonment to be released after serving three months after providing a recognisance of $2000 and being subject to a good behaviour bond for two years. The respondent was also ordered to make reparation of $61,301.47.

[7] The sentencing magistrate accepted the submission on behalf of the respondent that the overpayments occurred in the context of the respondent as a single parent supporting six daughters. The respondent was able to place before the court documentary evidence that all payments received were spent on necessities for her children. The sentencing magistrate accepted that the respondent had lived an otherwise lawful life and made significant contributions to the community as a nurse and that it would be a loss to the community if she was unable to continue to contribute as a nurse in a remote area of need. The sentencing magistrate accepted that the respondent's early plea of guilty was demonstrative of remorse.

[8] There is no dispute as to the facts basing Allegation 1. It is unclear whether the respondent now disputes a finding of professional misconduct.

[9] In a recent written submission, the respondent indicates that she is "willing to accept the recommendations as put forward by the OHO". That is in reference to the applicant's written submissions which include contentions for finding of professional misconduct in relation to Allegation 1, unprofessional conduct in relation to Allegation 2 and proposed orders for sanction. It is not clear whether the respondent is referring to the contended findings of professional misconduct and unprofessional conduct or only the proposed orders for sanction.

[10] In her earlier response to the referral, in relation to Allegation 1, the respondent indicated that she disputed such allegation as "the charges were of a personal nature and no way what so ever was connected or involved with my employment as a Registered Nurse."

[11] Such contention demonstrates a lack of understanding of the definition of professional misconduct and the extent of the respondent's professional obligations as a registered nurse. The term "professional misconduct" is defined in s 5 of the Health Practitioner Regulation National Law (Queensland) ("National Law") as including, in limb (c) of the definition:

"conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession."

[12] It can be seen that the terms of the definition explicitly recognise that conduct of the practitioner not connected with the practice of the practitioner's profession may constitute professional misconduct because such conduct may, nevertheless, be inconsistent with the practitioner being a fit and proper person to hold registration. Serious criminal offending, including offences of dishonesty, is quite clearly capable of being caught by such definition and constituting professional misconduct.[1] Such conduct has the potential to not only affect the reputation of the individual practitioner, but adversely affect the reputation of the profession and the public confidence in members of that profession.

[13] Offending of a similar nature to that of the respondent has been found to constitute professional misconduct in previous decisions of this and other tribunals:

• (a) Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338 at [8], citing Bannister v Walton [1992] NSWCA 21 at [11];

• (b) Nursing and Midwifery Board of Australia v Williams [2013] SAHPT1 at [18]-[19];

• (c) Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691; and

• (d) Health Ombudsman v Armstrong [2018] QCAT 382.

[14] That the respondent's conduct is caught by the definition in limb (c) does not mean that the Tribunal concludes that she is presently not a fit and proper person to hold registration in the profession. As noted by the Tribunal in Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338 at [8] in similar circumstances, the respondent's criminal offending affected her suitability to practise at the time of the conduct and at the time of the conviction but it was necessary for the purposes of sanction for the Tribunal to consider her current fitness to practise.

[15] In relation to Allegation 1, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

[16] Allegation 2 is an allegation of unprofessional conduct particularised as the respondent's failure to provide written notice to the National Board when she was convicted of the offence in the Magistrates Court within seven days as required by s 130(1) of the National Law.

[17] Section 130(1) of the National Law requires a registered health practitioner, within seven days after becoming aware that a relevant event has occurred, to give the National Board written notice of the event. Section 130(3)(a)(ii) provides that a relevant event includes the practitioner being convicted of or the subject of a finding of guilt for an offence punishable by imprisonment.

[18] The applicant submits that the respondent was convicted of the offence on 26 May 2017 and did not submit notification of such relevant event as required by s 130(3)(a)(ii) of the National Law.

[19] In her response to the referral, the respondent admits the allegation in the paragraph of the referral that includes the allegation of unprofessional conduct. The respondent further states:

I admit that I engaged in Unprofessional conduct when I was convicted of Obtaining Financial Advantage by deception on the 26th May 2017, in regards to Particulars part b. I was physically unable to notify AHPRA as I was immediately imprisoned. I had previous notified AHPRA on 26th April 2017 via form NOCE-00, along with a letter outlining my charges.

[20] The notice and letter referred to by the respondent are before the Tribunal. In the notice dated 26 April 2017, under the hand of the respondent, apparently received by AHPRA by mail on 8 May 2017, the respondent checks boxes that give notice of relevant events of being charged with an offence punishable by 12 months' imprisonment or more[2] and having been convicted of, or been the subject of a finding of guilt for an offence punishable by imprisonment.[3]

[21] In the accompanying letter, the respondent states:

I am supplying further information in regards to my Notice of Certain events. I have been charged with 'Dishonestly obtaining financial advantage from a Commonwealth entity (Centrelink). I will be sentenced on 26th May 2017, and my lawyer has informed me that I may be facing a short time in jail. He has predicted that if this does occur, that I may be facing 3 months imprisonment or a lengthy Good behaviour bond.[4]

[22] The respondent thus, in effect, gave advance notice of the expected or anticipated relevant event that was to occur on 26 May 2017. It is not surprising that the respondent may well have found it difficult during the first week of her imprisonment to provide written notice confirming the occurrence of such relevant event. Although, strictly speaking, the respondent's failure to do so may constitute a contravention of s 130(1) of the National Law, it does not necessarily amount to conduct that should be characterised as unprofessional conduct.

[23] The term "unprofessional conduct" is defined in s 5 of the National Law to mean:

...professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes-

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention...

[24] Not every contravention of a provision of the National Law will constitute unprofessional conduct. The definition requires a finding of professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner.

[25] Given the circumstances which have been detailed, the Tribunal is not satisfied to the requisite standard of proof[5] that the conduct of the respondent should be characterised as unprofessional conduct in such circumstances.

[26] In relation to Allegation 2, the Tribunal decides that the respondent has no case to answer and that no further action is to be taken in relation to the matter.

[27] As regards sanction, it must be recognised that the purpose of sanction in this jurisdiction is protective, not punitive, in nature. In the exercise of that protective jurisdiction it is appropriate for the Tribunal to take into account the importance of the maintenance of professional standards, the preservation of public confidence in the nursing profession and the need to deter the respondent and also other health practitioners from engaging in like conduct.

[28] Considerations of maintaining professional standards and public confidence in the profession require the denunciation by the Tribunal of the serious departure by the respondent from professional standards required of her.

[29] The applicant contends that a reprimand is an appropriate order by way of sanction and the respondent does not contend otherwise.

[30] A reprimand is not a trivial sanction. It expresses the denunciation by the Tribunal of the practitioner's conduct and remains a matter of public record until such time as the National Board chooses to cease its publication. A reprimand expresses the denunciation by the Tribunal of the respondent's conduct and it, along with the finding of professional misconduct, is aimed at the maintenance of professional standards and the preservation of public confidence in the nursing profession.

[31] Whether any further orders by way of sanction, such as a preclusion from practice, are required to meet the protective purposes of sanction may depend upon any evidence of insight or remorse on the part of a practitioner and any finding as to whether the practitioner presents a current or future risk to public health or safety or public confidence in the profession.

[32] The respondent filed a statement which does demonstrate a very real degree of insight and remorse on her part. She is concerned to maintain her nursing registration and it is clear that she continues to make a valuable contribution to that profession, continuing to practise as a clinical nurse consultant in a hospital providing services to a large number of remote indigenous communities.

[33] The respondent has no other qualifications than that of a registered nurse. Her continued employment enables her to continue to make reparation to the Commonwealth for her criminal offending, as well as provide for her children.

[34] Given the punishment already suffered by the respondent by way of criminal sentencing, in circumstances where she has otherwise demonstrated that she is a capable and responsible nursing professional, and given her current financial responsibilities, any order requiring a preclusion from practice would not only be unnecessary to meet the protective purposes of sanction, but would be unduly punitive. The applicant does not submit otherwise.

[35] The applicant does submit that, in addition to a reprimand, the respondent's registration should be made subject to a condition that she complete an educational course on professional accountability. Given the attitude, at least originally expressed, by the respondent in her response to the referral regarding Allegation 1, the Tribunal agrees that such a condition is an appropriate one.

[36] The applicant has not sought any departure from the default position that each party to the proceedings must bear its own costs of the proceedings, and that will be reflected in the orders of the Tribunal.

[37] Accordingly, the Tribunal orders as follows:

1. In relation to Allegation 1, pursuant to s 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. In relation to Allegation 2, pursuant to s 107(2)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has no case to answer and no further action is to be taken in relation to the matter.
3. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
4. Pursuant to s 107(3)(b)(i) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes the following condition on the respondent's registration:

The respondent is to complete an educational course on professional accountability within 12 months.

1. Each party must bear the party's own costs of the proceeding.

[1] See also limb (c) of the definition of "unprofessional conduct" together with limbs (a) and (b) of the definition of "professional misconduct" in s 5 of the National Law.

[2] National Law_,_ s 130(3)(a)(i).

[3] National Law_,_ s 130(3)(a)(ii).

[4] An accurate prediction, as it turned out.

[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.