Health Ombudsman v Flute [2021] QCAT 189

Queensland Civil and Administrative Tribunal|2021-05-31

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - NURSES - DISCIPLINARY PROCEEDINGS - where the respondent was registered as an enrolled nurse - where the respondent was convicted of serious criminal offences - whether such conduct should be characterised as professional misconduct - where the respondent failed to notify the Nursing and Midwifery Board of the relevant event of being charged with offences - whether such conduct should be characterised as unprofessional conduct - what sanction should be imposed

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

Chiropractic Board of Australia v Oorloff [2019] VCAT 2010

Health Ombudsman v Lozano [2021] QCAT 87

Nursing and Midwifery Board of Australia v Gaffney [2019] SAHPT 11

Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 318

[1] This is a referral of a health service complaint against Trudi Ann Flute (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).
[2] The applicant seeks findings that the respondent has behaved in a way that constitutes professional misconduct and orders for sanction. The respondent has chosen not to engage in the proceedings, has filed no submissions and declined an opportunity to appear at the hearing, either in person or remotely.

[3] The respondent is 37 years of age and was first registered as an enrolled nurse on 30 July 2007. From submissions made on her behalf during the criminal proceedings regarding some of the conduct the subject of the referral, it appears that she was gainfully employed as an enrolled nurse at the Rockhampton Hospital until August 2012.
[4] It would seem that it was in about 2012 that the respondent began using methylamphetamine. That, no doubt, provides some explanation for her subsequent criminal offending and deterioration in professional practice as a nurse.
[5] The respondent's registration subsequently became subject to conditions. The respondent ultimately failed to renew her registration, which lapsed on 4 July 2018, and she has remained unregistered since.
[6] The respondent was not practising as an enrolled nurse at the time of the conduct the subject of the referral; however, she still maintained her registration at such times.

[7] The referral particularises three "allegations".
[8] Allegation 1 relates to the respondent's conviction for offences of violence.
[9] On the evening of 27 December 2017, the respondent and a friend walked uninvited into the yard of a residence at Tara. The respondent walked to the front porch of the residence and hit a male person seated on the front porch at least ten times, causing his brow to split, resulting in bleeding.
[10] The respondent then walked into the house through the front door, again uninvited, approached a female person who was standing near the front doorway and punched that person once to her face in the mouth area, causing the person's upper lip and gums to be split, resulting in bleeding and swelling.
[11] The respondent then walked into the kitchen area of the house, approached the owner of the house and punched that person in the right side of the head, causing bruising and swelling of her face. The respondent then turned around and left the house through the front door.
[12] On the following day, the respondent was charged with criminal offences.
[13] On 19 April 2018, in the Magistrates Court at Dalby, the respondent pleaded guilty to and was convicted of one count of entering a dwelling and committing an indictable offence and three counts of assault occasioning bodily harm whilst in company. Convictions were recorded for all four offences and the respondent was sentenced to 12 months imprisonment, suspended for three years and made subject to a probation order for a period of two years, as well as being ordered to pay compensation to her three victims.
[14] Allegation 2 is constituted by the respondent's failure to notify the Nursing and Midwifery Board of Australia of the relevant event of her being charged with offences punishable by 12 months imprisonment or more, in contravention of section 130 of the Health Practitioner Regulation National Law (Queensland) (National Law).
[15] Allegation 3 relates to the respondent's conviction of one offence of supplying Schedule 2 dangerous drugs. The offence was committed on 12 May 2018.
[16] Whilst the respondent was charged with and convicted of additional serious drug offences, including trafficking in methylamphetamine and cannabis, and supplying dangerous drugs, only the one offence of supplying Schedule 2 dangerous drugs was committed prior to the lapse of her registration. This offence is the subject of allegation three.
[17] On 22 August 2019, the respondent pleaded guilty to the offence of supplying Schedule 2 dangerous drugs, the other drug offences committed subsequent to her lapse of registration and other offences of dishonesty, violence and weapons offences, also committed subsequent to the lapse of her registration.
[18] In relation to the offence of supplying the Schedule 2 dangerous drug on 12 May 2018, the respondent was sentenced to two years imprisonment. Her concurrent sentences for other offences resulted in an effective total head sentence of four years and six months.
[19] All the offences were committed during the operational period of the suspended sentence imposed on 19 April 2018. The suspended 12-month term of imprisonment was activated and ordered to be served concurrently with the other terms of imprisonment.
[20] Taking into account declared pre-sentence custody, the date for the respondent's eligibility for parole was fixed at 22 April 2020. The respondent has subsequently been released on parole.

[21] None of the conduct the subject of the referral occurred in the course of the respondent carrying out the practice of nursing, except insofar as Allegation 2 relates to her failure to fulfil the obligation imposed upon her as a registered health practitioner to notify her professional Board of the relevant event.
[22] The definitions of "unprofessional conduct" and "professional misconduct" in section 5 of the National Law make it clear that such conduct may be constituted by conduct outside the practice of the health profession. Health practitioners enjoy the benefits of registration and the obligations of such registration require them to conduct themselves with propriety, not only in the conduct of their profession, but also in their personal life.
[23] The conduct of the respondent, the subject of allegations 1 and 3, fell well below the standard of conduct expected of members of the nursing profession in their personal life and obviously had the real potential to affect public confidence in the members of the nursing profession. If a member of the profession commits a criminal offence punishable by imprisonment this can reflect adversely on the reputation of the profession and may damage public confidence in it.
[24] The conduct the subject of allegation 1 is completely inconsistent with the obligations of nursing professionals, being members of a caring profession who are expected to help people and who the public reasonably expects to be people that they can trust not to hurt them.
[25] Although the conduct of the respondent in supplying dangerous drugs did not impact directly on patients, it was conduct quite inconsistent with the expectations of the public and other members of the profession that nurses exercise the utmost care in their dealings with drugs, both professionally in the context of the legislation governing prescribed drugs and also by avoiding serious illicit drug offending contrary to the criminal law.
[26] The conduct of the respondent with respect to both allegations 1 and 3 readily fit the terms of the definition of "professional misconduct" in limbs (a) and (c) of that definition in section 5 of the National Law.
[27] Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides, in relation to each of allegations 1 and 3, that the respondent has behaved in a way that constitutes professional misconduct.
[28] In relation to allegation 2, the Tribunal has, on many previous occasions, characterised such conduct as unprofessional conduct, given that it readily fits the inclusory paragraph (a) of the definition of "unprofessional conduct" in section 5 of the National Law.
[29] Pursuant to section 107(2)(b)(ii) of the HO Act, the Tribunal decides, in relation to allegation 2, that the respondent has behaved in a way that constitutes unprofessional conduct.

[30] Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, maintenance of professional standards and maintenance of public confidence in the profession.
[31] The applicant submits that the respondent should be reprimanded. Her conduct certainly deserves the denunciation of the Tribunal.
[32] Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
[33] The applicant further submits that the protected purposes of sanction require an order disqualifying the respondent from reapplying for registration as a health practitioner for a period of up to two years.
[34] The applicant, in support of such submission, refers to decisions of this and other Tribunals.[1] Those authorities do appear to support the submission of the applicant as to sanction and indeed suggest that an even longer period of disqualification from applying for registration would be within range.
[35] Given the absence of the respondent at the hearing, considerations of procedural fairness mean that the Tribunal should not consider orders for sanction more severe than have been indicated by the applicant in written submissions served on the respondent.
[36] The Tribunal finds that this is not a situation where there has been a preclusion from practice prior to hearing which is directly as a consequence of the conduct the subject of the hearing. Even if some allowance is made in a general way for the period of about three years during which the respondent has been unregistered prior to the hearing, the Tribunal considers that no less than a period of two years further preclusion from practice would adequately meet considerations of denunciation, maintenance of professional standards and public confidence in the profession, given the seriousness of the respondent's misconduct.
[37] Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of two years.

[1] Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 318; Chiropractic Board of Australia v Oorloff [2019] VCAT 2010; Nursing and Midwifery Board of Australia v Gaffney [2019] SAHPT 11; see also Health Ombudsman v Lozano [2021] QCAT 87.

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties