Health Ombudsman v Gillespie [2021] QCAT 54

Health Practitioner Regulation National Law (Queensland), s 5, s 196, s 224, s 225, s 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 100

Legal Services Commissioner v McLeod [2020] QCAT 371

Medical Board of Australia v Kyaw [2016] QCAT 34

Pharmacy Board of Australia v Tavakol [2014] QCAT 112

• [1] This is a referral of a health service complaint against Donald Anthony Gillespie (respondent) pursuant to sections 103 and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The referral alleges conduct by the respondent by providing temazepam to B, a 14 year old boy, outside of a health care setting, in circumstances where he knew B to be vulnerable. The parties have reached agreement as to the facts constituting the admitted conduct, that the conduct should be characterised as professional misconduct, and are agreed that an appropriate sanction consists of the respondent being reprimanded. There is an issue in dispute as to whether or not the Tribunal should further order the period during which a reprimand be recorded in the Register.
• [2] The respondent is 37 years of age and was aged 31 at the time of the conduct the subject of the referral. He has been registered to practice as a registered nurse since 10 March 2009. He has not previously been the subject of a complaint regarding his professional practice or disciplinary proceedings.

• [3] The respondent knew B through the respondent's foster child who was in the same grade as B at school. The respondent became close to B and his family. B would occasionally stay at the respondent's house. The respondent and his spouse developed a friendship with B's mother and older sister who cared for B and his siblings. The respondent and his spouse provided support to B and his family in various ways. Their assistance was helpful because both B's mother and older sister had mental health issues and B's mother was addicted to drugs. B himself was suffering a number of mental health issues, having at least one mental health admission to hospital and engaging in episodes of self-harm or "cutting". The respondent and his spouse counselled B at various points when B's mental health deteriorated. The respondent, on occasions, offered advice to B's mother as to personal issues relating to B.

• [4] Temazepam is listed in Schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons. As a Schedule 4 medicine, temazepam may only be prescribed for a patient by a doctor. It can only be given to a patient by a registered health practitioner under the direction of the prescribing doctor. Temazepam falls within the category of drugs known as benzodiazepines and is found in Appendix 8 of the Health (Drugs and Poisons) Regulation 1996 (Qld) and is a restricted drug of dependency as it may lead to addiction and dependency. Temazepam is contraindicated for use by persons who have suicidal thoughts, have inflicted self-harm or have suffered depression.
• [5] The consumer medicine information in relation to temazepam states that there is not enough information to recommend the use of the medicine in children and warns:

Do not give this medicine to children unless advised by the child's doctor.

The safety and effectiveness of temazepam in children under 16 years have not been established.

• [6] The respondent was aware temazepam is a Schedule 4 medicine and a restricted drug of dependency. The respondent says he was not aware there is insufficient evidence to support the use of temazepam in children.

• [7] The respondent's spouse had been prescribed temazepam for assistance sleeping and treatment for migraines. Between late 2014 and 30 January 2015 the respondent gave temazepam tablets to B's mother with the understanding that she would give those tablets to B. He sourced the tablets from his spouse's prescribed medication.
• [8] There were three occasions of such supply of temazepam for B. On the first occasion in December 2014, during the course of a Christmas celebration that the respondent was hosting at his house, B's mother asked the respondent whether he would provide her with temazepam to assist with B's difficulties sleeping. The respondent provided her with one of his spouse's temazepam tablets. On the second occasion, prior to B travelling overseas over the Christmas and New Year period in 2014/2015, the respondent provided a tablet of temazepam to B's mother who gave it to B's elder sister to give to B in the event that he could not sleep during the overseas holiday. The third occasion was on 30 January 2015 after the respondent received a telephone call from B in which he indicated that he was distressed and had not been sleeping. The respondent offered to drop around some sleeping tablets to B's residence. He later attended at B's house and left a temazepam tablet in an envelope in B's letterbox.
• [9] In supplying the tablets of temazepam to B, the respondent was acting beyond his scope of practice, competence, and authority.
• [10] The Code of Professional Conduct for Nurses in Australia provides that when performing their duties and conducting their affairs, professionals will uphold exemplary standards of conduct, commonly taken to mean standards not generally expected of lay people or the "ordinary person in the street". The Code of Professional Conduct for Nurses sets the minimum standards for practice a professional person is expected to uphold both within and outside of professional domains in order to ensure the good standing of the nursing profession. The Code provides that nurses must conduct themselves in accordance with laws relevant to the profession and practice of nursing. It provides the nurses must be familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws. Relevant laws, of course, include the legislation governing drugs and poisons. Adherence to such legislation is expected of a registered nurse at a higher level than generally expected of lay people or the ordinary person in the street.
• [11] In supplying temazepam to B, contrary to the applicable legislation, the respondent committed a serious breach of the Code of Professional Conduct and engaged in conduct substantially below that to be expected of a registered nurse of his experience. In doing so, the respondent also acted contrary to those ethical obligations prescribed in relation to the maintenance of professional boundaries. His conduct blurred the lines between his professional responsibilities as a nurse and his personal relationship with B and B's family and, likewise, constituted a failure to exhibit those professional standards expected of a nurse of his qualifications and experience.
• [12] The respondent's behaviour in giving such medication to a 14 year old child also demonstrated a willingness to act outside his relevant scope of practice as a nurse. His lack of knowledge as to the inadvisability of supplying such a drug to a child demonstrates that he was acting outside his own scope of practice. He should have been aware that the prescription of any drug to a child, let alone a restricted drug of dependency, was a serious matter requiring professional judgment by a relevantly qualified and authorised medical practitioner.
• [13] The respondent's conduct, for these reasons, constitutes a serious example of professional misconduct. The Tribunal readily accepts the submissions made on behalf of both parties that the respondent's conduct should be characterised as professional misconduct as defined in the definition of professional misconduct in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) under both limbs:

(a) 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; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

• [14] The Tribunal decides, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.

• [15] The agreed submissions made by the parties as to appropriate sanction and the orders made by the Tribunal regarding sanction cannot be properly understood except in the context of some unusual circumstances relating to the respondent and B.
• [16] On 27 February 2015, the respondent was charged with criminal offences relating to B. Such charges did not include any charge with respect to the supply of temazepam to B. Such charges resulted in the respondent being the subject of an interim prohibition order and immediate registration action taking effect on 13 April 2015 and the consequent suspension of his employment as a nurse on 8 May 2015. The charges proceeded to a trial in the District Court of Brisbane on 17 to 19 May 2016. The respondent was found not guilty by a jury of all those charges.
• [17] In the course of the investigation of the criminal charges, police had obtained evidence suggesting that the respondent may have supplied a Schedule 4 drug to B. On 17 August 2016, police notified the applicant of such information and the applicant commenced an investigation into the matter. On 18 November 2016, the applicant confirmed a decision to revoke the interim prohibition order and instead impose conditions on the respondent's registration that prevented him from dealing with controlled drugs except under the supervision of another registered health practitioner. The respondent was able to resume his employment as a registered nurse after a period of about 18 months suspension without pay. The respondent participated in an interview with officers from the Office of the Health Ombudsman in which he admitted to the conduct the subject of these proceedings.
• [18] On 5 April 2019, the applicant confirmed that the conditions on the respondent's registration were to be removed. He has held unconditional registration since that time.
• [19] The conditions placed upon the respondent's registration between November 2016 and April 2019 were not particularly burdensome in that they did not impact severely upon the respondent's ability to carry out the duties of his employment and, indeed, he was able to continue and progress in his employment notwithstanding such restrictions. They are of some limited relevance in determining sanction in that they go some way towards addressing issues of personal and general deterrence. Of more significance in such regard, although not directly related to the conduct the subject of these proceedings, was the earlier period of prohibition from practice and suspension from employment. That had very serious consequences to the professional practice and personal circumstances of the respondent. It resulted in him being unable to earn remuneration as a registered nurse and the respondent and his family suffered considerable financial and personal disadvantage. As a consequence of the criminal charges against him, the respondent lost his blue card and, consequently, care of his foster child, and suffered distress from the impact upon his foster child of their separation. The respondent also suffered the indignity of lurid media reporting of the criminal charges against him.
• [20] As mentioned earlier, these matters are not directly related to the conduct the subject of these proceedings. Both parties, however, have submitted, and the Tribunal accepts, that they are relevant in providing context for the orders sought by the parties by way of agreed submissions on sanction. Indeed, the applicant submits that, absent such matters and other matters in mitigation to which I will refer, the respondent's misconduct was so serious as to normally warrant some period of suspension of registration to properly address the protective purposes of sanction. The parties submit, however, that these circumstances, that is, the effects upon the respondent of disciplinary action as a consequence of charges of which he was ultimately acquitted, address aspects of personal and general deterrence at least to the extent that any sanction now for the conduct before the Tribunal, over and above a reprimand, would be punitive. The Tribunal accepts the submissions of the parties as to the relevance of these matters.

• [21] In determining an appropriate sanction for the respondent's misconduct, the health and the safety of the public are paramount. The purpose of the sanction is protective, not punitive. Both parties submit that an appropriate sanction would be an order whereby the respondent is reprimanded. They correctly submit that a reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. A reprimand is a matter of public record affecting the reputation of a practitioner. As will be further discussed later in these reasons, a reprimand remains on the public Register until such time as the National Board determines that it is appropriate that the reprimand be no longer so recorded.
• [22] The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties. However, the Tribunal ought not readily depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.[1]
• [23] In accepting that the proposed sanction of a reprimand is an appropriate one, the Tribunal has also had regard to the following further matters in mitigation.
• [24] Following the conduct, the subject of the referral, the respondent completed education in ethical decision-making, safe professional boundaries and medication safety, and has provided evidence of completion of such courses of his own volition and at his own expense.
• [25] The respondent has filed an affidavit in which he deposes to consequently having an appreciation of how his relationship with B's family clouded his judgment and caused him to fail to keep a proper separation between his personal relationship and his professional obligations as a registered nurse. He feels confident that he would say no to any future request for the provision of medication if a similar request was made in the future. He recognises that he allowed his concern for B and his personal relationship with B's family to override what would otherwise have been his ordinary response to such a situation. He accepts now that his conduct represented a serious error in judgment striking at the heart of the profession and professional responsibilities of nurses with the potential to cause the public to lose trust and confidence in the role of nurses. I accept the affidavit evidence of the respondent that he is deeply remorseful for his behaviour.
• [26] Subsequent to his return to work in 2016 following his suspension, the respondent has worked as a registered nurse and has demonstrated an ability to practise at an appropriate standard.
• [27] The respondent's professional misconduct was serious for reasons earlier stated. But in the particular unusual circumstances of this case, the Tribunal accepts the submissions by both parties that an appropriate order by way of sanction is to reprimand the respondent. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.

• [28] The respondent submits that an additional order to the effect that the reprimand remain visible against the respondent's registration for a period not exceeding 12 months from the date of the Tribunal's orders is appropriate in all the circumstances and should be made by the Tribunal.
• [29] The respondent submits that the terms of section 107(3) of the HO Act do not prohibit the Tribunal from making the order sought.
• [30] The respondent refers to the decision of the Medical Board of Australia v Kyaw[2] to the extent that it would appear from the reasons for decision that both parties in that proceeding submitted that the Tribunal should make an order to a similar effect. I note, however, that the Tribunal ultimately did not make such an order but, rather, recommended consideration by the Board as to the length for which a reprimand should remain on the Register, noting that, ultimately, it was a matter for the Board, not the Tribunal.
• [31] The respondent further relies upon two documents published by the Australian Health Practitioners Regulation Agency (AHPRA). The "AHPRA Management Policy - Regulatory Operations Operational Policy: Removal of reprimands from the national register" contains a policy statement in the following terms:

A reprimand imposed under the National Law is to be removed from the national register on the publication end date for the reprimand as set by the court, tribunal, panel or NSW committee (the period for publication of the reprimand commences on the date of publication to the National Register). Where the panel or tribunal in an AHPRA jurisdiction has not set a publication end date or where the reprimand was imposed under prior legislation, the reprimand is to be removed no earlier than five years from the date of initial publication subject to:

• the practitioner submitting an application in the approved form for removal of the reprimand (it is sufficient for the practitioner to submit the required information in the form of a letter or email)
• no relevant event having occurred in the five year period of publication of the reprimand
• the appropriate delegation being with AHPRA, and
• legal advice being sought to confirm the power to remove reprimands imposed under prior legislation and any changes to the matters which must be considered to inform the removal decision.

Where an adjudication body in NSW has imposed the reprimand under the National Law and recommended a publication end date, the reprimand is to be removed no earlier than the recommended end date subject to:

• the practitioner submitting an application in the approved form for removal of the reprimand
• the appropriate delegation being with AHPRA, and
• no relevant event having occurred in the period of publication of the reprimand.

• [32] The policy is noted as being effective 2 October 2017 and having been reviewed in July 2018.
• [33] The respondent also refers to an AHPRA document titled "Application to remove reprimand from the National Register". The title and parts of the document to be completed by the applicant do not appear to be limited to reprimands imposed under the National Law and it has not been suggested by either party that there would be some other form applicable if a practitioner was seeking removal of a reprimand imposed by the Tribunal under the HO Act.
• [34] The first words of the information on the first page of the form refer generally as follows: "This form is for registrants seeking to have a record of a reprimand removed from the register."
• [35] The following information on the first page of the form does, however, specifically refer to reprimands imposed under the National Law or in the co-regulatory jurisdiction in New South Wales as follows:

Reprimands imposed under the National Law

Where a panel or tribunal or court has specified a publication end date practitioners are not required to apply for the reprimand to be removed. The reprimand will be removed from the register on the date specified by the panel or tribunal or court. The practitioner is not required to make an application for removal of the reprimand.

Reprimands in the co regulatory jurisdiction in New South Wales (NSW)

Where an adjudication body in NSW has imposed the reprimand under the National Law and recommended a publication end date, the practitioner must apply for the reprimand to be removed from the register. The practitioner may only apply for the reprimand to be removed after the recommended publication end date. Applications received prior to the publication end date recommended by the adjudication body will not be accepted. Where an adjudication body in NSW has imposed the reprimand under the National Law and did not recommend a publication end date for the reprimand, a practitioner may only apply for the reprimand to be removed from the register five years from the date of publication of the reprimand. Applications received prior to the completion of the five year period will not be accepted.

• [36] The respondent relied upon the contents of those documents as evidencing an understanding on the part of AHPRA and the National Boards that a Tribunal imposing a reprimand could specify a publication end date and that AHPRA would act upon the date specified by the Tribunal for removal of the reprimand from the register. The respondent submitted that the documents demonstrated a policy of willingness to remove a reprimand from the register on a date specified by the Tribunal but also, significantly, a prohibition upon a practitioner applying for removal of a reprimand from the register for a period of five years in the absence of such a specification of a publication end date by the Tribunal.
• [37] The respondent submitted that this Tribunal would be concerned that, in the absence of an order specifying a publication end date, the respondent would be prohibited from applying for a reprimand to be removed for a period of five years from the date of publication of the reprimand. The respondent submitted that that would be unjust in the circumstances of this case and that this Tribunal should order a publication end date for the reprimand consistent with the terms of the policy as demonstrated by the policy document and application document.
• [38] The applicant points out that in the co-regulatory system that operates in Queensland, the applicant has no power or responsibility with respect to the recording of a reprimand or its subsequent removal. Section 225(j) of the National Law provides that the fact that a practitioner has been reprimanded must be included in the National Register which a National Board is required to keep pursuant to section 224 of the National Law. Section 226(3) of the National Law provides that the National Board may decide to remove information that a registered health practitioner has been reprimanded from the National Register "...if it considers it is no longer necessary or appropriate for the information to be recorded on the Register."
• [39] The applicant submits that the powers of the Tribunal and the orders that may be made by the Tribunal following upon a finding of professional misconduct are exhaustively provided in section 107(3) of the HO Act[3] and that such powers do not include any order as to how long a reprimand will remain on the register. The applicant submits that any order of the type sought by the respondent would be ultra vires. The applicant, of course, is not in a position to make any submissions on behalf of AHPRA or the National Board as to the significance of the terms of the policy document or application document published by AHPRA and relied upon by the respondent.
• [40] This Tribunal is, on occasions, required to exercise its powers pursuant to section 196 of the National Law to make orders by way of sanction as provided in section 196(2), which is in relatively identical terms to section 107(3) of the HO Act. So, on occasions, this Tribunal does order reprimands pursuant to the National Law. As with section 107(3) of the HO Act, section 196(2) of the National Law does not specifically provide for the making of any order as to an end date for the publication of a reprimand. I would be most concerned if, in relation to such orders for reprimand, a policy was applied by AHPRA or the National Board in the terms suggested by the policy document and application document in evidence before the Tribunal. That is, that in the absence of the Tribunal ordering a publication end date, a practitioner would be prohibited for a period of five years from the date of publication of the reprimand from applying for its removal. I see no basis for such policy in the terms of the National Law and, in particular, given the terms of section 226(3) of the National Law. In circumstances where, as I will ultimately hold, this Tribunal has no power to set a publication end date, application of such a policy would be unreasonable, unfair and liable to lead to positive injustice.
• [41] I hold a similar concern with respect to reprimands imposed by this Tribunal pursuant to the HO Act. Given that the application document seems one apt for a practitioner to apply for the removal of such a reprimand from the Register, I would be most concerned if the policy referred to on the front page of that application form and in the policy document was considered applicable to such an application for removal of the reprimand from the Register.
• [42] Those concerns have given me pause when considering the submissions made on behalf of the respondent that I should make the orders sought by the respondent.
• [43] The Tribunal is a creature of statute and derives its powers from statute. It is not a superior court of record with some inherent jurisdiction to be called in aid of its statutory powers. Section 6(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides:

An enabling Act conferring original jurisdiction on the tribunal will generally state the tribunal's functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.

• [44] Section 9 of the QCAT Act provides relevantly as follows:

Jurisdiction generally

(1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

(2) Jurisdiction conferred on the tribunal is -

(a) original jurisdiction; or

(b) review jurisdiction; or

(c) appeal jurisdiction.

...

(4) The Tribunal may do all things necessary or convenient for exercising its jurisdiction.

• [45] Section 10(1)(b) relevantly provides that the Tribunal's original jurisdiction is "...the jurisdiction conferred on the tribunal under an enabling Act to decide a matter in the first instance."
• [46] Section 16 of the QCAT Act provides as follows:

Functions for jurisdiction conferred by enabling Act

In exercising its original jurisdiction conferred by an enabling Act, the tribunal may perform the functions conferred on the tribunal by this Act or the enabling Act.

• [47] The functions conferred on the Tribunal by the enabling HO Act in these proceedings are, relevantly, to decide, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct and, having made such a decision, to do one or more of the things provided in section 107(3) of the HO Act. Those things include the following:

(b) imposing a condition on the practitioner's registration;

(d) suspending the practitioner's registration for a specified period; or

• [48] Section 107(4) of the HO Act also provides for certain orders that can be made upon a decision to cancel the practitioner's registration or if the practitioner does not hold registration.
• [49] Nowhere in section 107 of the HO Act is a function conferred whereby the Tribunal can order a publication end date for a reprimand on the Register.
• [50] I accept the submissions on behalf of the applicant that, if the Tribunal was to make such an order, it would be ultra vires. Ultimately, the decision as to when a reprimand should no longer be recorded on the Register is a responsibility imposed on the National Board pursuant to section 226(3) of the National Law.
• [51] Whilst I have already expressed my concern as to the potential application of a policy evidenced by documents referred to, whereby an arbitrary period of five years might be enforced, and specifically expressed my concern as to the injustice that might result if such a policy was followed in respect of the respondent in this matter, I do not consider it appropriate for the Tribunal to express any view as to what lesser period of recording of a reprimand would be appropriate. Suffice it to say that, in all the circumstances of this case, AHPRA or the National Board might reasonably conclude that it would be a significantly lesser period than the five year period apparently contemplated by the policy.

• [52] Both parties submit that each party should bear their own costs of the proceedings in accordance with the usual position pursuant to section 100 of the QCAT Act and the orders of the Tribunal will reflect that that will be the case.

[1] Legal Services Commissioner v McLeod [2020] QCAT 371 at [31]- [32].

[2] [2016] QCAT 34.

[3] Pharmacy Board of Australia v Tavakol [2014] QCAT 112.