Health Ombudsman v Hardy [2018] QCAT 416

Health Practitioner Regulation National Law (Queensland), s 109, s 130

Chinese Medicine Board of Australia v Garvin [2015] QCAT 244

Honey v Medical Practitioners Board of Victoria [2007] VCAT 526

Medical Board of Australia v Leggett [2013] QCAT 182

Psychology Board of Australia v GA [2014] QCAT 409

[1] On 28 February 2018, the Health Ombudsman referred to the Tribunal disciplinary proceedings against Ms Hardy. The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The proceedings followed the making of a notification to the Office of the Health Ombudsman (OHO) by Ms Hardy's employer in October 2014.

[2] There are three charges the subject of the referral. In summary, it is alleged that:

• (a) Charge 1 - Ms Hardy was convicted in the Magistrates Court, on her own plea, on 12 March 2015 of one count of stealing and 109 counts of fraud, in relation to having stolen a prescription pad the property of her employer and having dishonestly obtained a quantity of prescriptions drugs; and

• (b) Charge 2 - Contrary to s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law), Ms Hardy failed to notify the Board of her suspension from employment, of having been charged with offences punishable by 12 months imprisonment or more, and of her subsequent convictions; and

• (c) Charge 3 - In completing her online renewal of registration application on 28 May 2015, contrary to s 109 of the National Law, Ms Hardy falsely answered questions in relation to changes to her criminal history arising from the bringing of the charges and the convictions in the Magistrates Court and as to the fact of her suspension.

[3] It is alleged in the referral that as a result of the conduct, Ms Hardy had engaged in professional misconduct, or in the alternative, unprofessional conduct, as those terms are defined in the National Law.

[4] Ms Hardy has admitted all charges and the particulars of each of the charges. The matter has proceeded before the Tribunal by way of a statement of agreed facts.

[5] Ms Hardy completed her nursing qualifications in the United Kingdom in 2009 and commenced working at Lancashire Teaching Hospital for a period of nine months before moving to Australia with her husband and young child in February 2010.

[6] Ms Hardy obtained her registration as a nurse in Queensland on 7 January 2010. From 22 March 2010 to 15 October 2014,[1] Ms Hardy was employed as a registered nurse at the Townsville Hospital and Health Service (THHS). Ms Hardy completed her graduate year in the palliative care ward. She then completed a six-week period in the maternity ward before returning to the palliative care ward.

[7] Ms Hardy's medical records tendered before the Tribunal, and as agreed in the statement of agreed facts, show that Ms Hardy had a history of anxiety and insomnia which seem to have commenced as a result of a difficult pregnancy in 2004. It was during that pregnancy that Ms Hardy was first subscribed schedule 4 medication, Zopiclone, for her insomnia.

[8] The records indicate that since moving to Australia in 2010, Ms Hardy continued to be prescribed Zopiclone. In 2011, her treating general practitioner noted that she had a long history of dependency on Zopiclone. Certainly, since immigrating, Ms Hardy experienced a series of very stressful psychosocial events, including: the death of her mother-in-law to cancer in October 2010 after which time her husband started drinking heavily and attempted suicide; her son began experiencing suicidal thoughts and was struggling at school; the termination of a pregnancy in October 2011 and a diagnosis in 2013 of bulging cervical discs causing severe neck pain.

[9] Ms Hardy's neck pain increased to a point where it became necessary for her to have periods off work and she was shifted to lighter duties. Her dependence on Zopiclone to sleep was increasing. She continued to be prescribed Zopiclone but she began supplementing those prescriptions by using forged prescriptions.

[10] On 7 May 2013, Ms Hardy presented the first forged receipt to a pharmacist. Ms Hardy filled out a script from a script pad she had taken from the hospital inserting the name of a specialist at the THHS whom Ms Hardy knew and had worked with whilst in the palliative care unit.

[11] In her response to the referral, Ms Hardy says that she "hit rock bottom" in July 2014. At that time, her brother had just lost a baby, her son was again experiencing suicidal thoughts, her husband was unemployed, placing pressure on Ms Hardy as the sole income earner, and Ms Hardy reported feeling completely isolated. Further, at this time there was a change in management at her workplace and she became required to return to shift work which negatively impacted her sleep pattern.

[12] In the period between 7 May 2013 and 15 October 2014, Ms Hardy presented fraudulent scripts to a number of pharmacies and on each occasion used the same prescribing doctor's name.

[13] On 15 October 2014, Ms Hardy presented a fraudulent script to a pharmacy in Townsville. The pharmacist noted Ms Hardy's prescribing history with some concern and rang the prescribing doctor to raise his concerns. The prescribing doctor indicated that she had never written any of the prescriptions. The prescribing doctor contacted the Chief Operating Officer of the THHS, who reported the matter to police. Ms Hardy was suspended from work that day.

[14] On 16 October 2014, the OHO was notified by the Chief Operating Officer of THHS of Ms Hardy's conduct.

[15] Following an investigation by the police, on 29 October 2014 Ms Hardy was charged with one count of stealing and 18 counts of fraud. On 15 November 2014, Ms Hardy was charged with a further 93 counts of fraud.

[16] Ms Hardy resigned from her position at THHS on 21 January 2015.

[17] On 2 February 2015, Ms Hardy commenced employment with Applied Care as a trainer and assessor in aged care and disability, subsequently becoming an area co-ordinator. Ms Hardy remains in that role. Although not a requirement of her current role, at all times Ms Hardy has retained her registration.

[18] On 12 March 2015, Ms Hardy pleaded guilty to one charge of stealing as a servant, and 109 charges of fraud in the Townsville Magistrates Court. Ms Hardy was sentenced to two years probation, with no conviction recorded.

[19] Ms Hardy was required to notify the Board of her suspension from her employment, of having been charged and of her convictions but failed to do so on each occasion.

[20] On 28 May 2015, Ms Hardy lodged her online application to AHPRA for annual renewal of her registration as a nurse. In the online application form, Ms Hardy was asked if there had been any changes to her criminal history in the last 12 months and whether her employment had been suspended in the last 12 months. Ms Hardy answered 'no' to both of these questions, despite knowing this to be incorrect.

[21] On 27 November 2015, the OHO gave Ms Hardy a notice requesting that she explain her failure to notify the Board. In response to this notice, Ms Hardy responded by stating that she had assumed the OHO had already communicated with AHPRA regarding this information. She stated that having been told her conviction would not be recorded, she assumed that she did not need to declare this.

[22] On 19 April 2016, upon a request from the Board, Ms Hardy attended for a health assessment. Based upon the report of the consultant psychiatrist, on 30 June 2016 the Board decided that Ms Hardy had a health impairment and she became part of the Board's impairment program. The Board imposed conditions on her registration, including a requirement for supervision and restricted access to medication. Ms Hardy was also required to commence random urinalysis and hair testing.

[23] Ms Hardy has complied fully with all of the conditions. The tribunal notes that AHPRA lifted the condition requiring her to attend for urinalysis and hair testing on 26 April 2018 as every one of her drug tests had been clean. On 29 June 2018, Ms Hardy attended for a further health assessment on Dr Varghese, consultant psychiatrist. In his report, Dr Varghese opined that Ms Hardy did not suffer from any psychological disorder and that any previous condition was in remission. He concluded that Ms Hardy is stable from a health perspective physically and psychologically and was fit to return to employment as a registered nurse without restrictions on her practice. Following receipt of the report, the Board determined to lift the conditions.

[24] A copy of the report of Dr Varghese was provided to the Health Ombudsman on 27 August 2018, after the Health Ombudsman had filed the initial submissions. The Health Ombudsman filed amended submissions on 31 August 2018, stating that orders should be made that the respondent be reprimanded and that the parties should bear their own costs of the proceedings. Their previous submissions had sought the imposition of a period of suspension in the range of six to 12 months.

[25] Since being suspended by the THHS in October 2014, Ms Hardy has not worked in a clinical capacity.

[26] The primary offending conduct is the conviction resulting from the theft of the prescription pad and the fraudulent presentation of the prescriptions on 109 separate occasions.

[27] That conduct as particularised in charge 1 involved a serious breach of trust and dishonesty. Conduct of that kind is totally unacceptable and clearly satisfies the definition of professional misconduct in s 5 of the National Law. Ms Hardy has admitted her conduct amounted to professional misconduct. That admission is appropriately made.

[28] The failures to notify the subject of charges 2 and 3 are secondary to the primary misconduct. Whilst secondary, as submitted by the Health Ombudsman, failures to report and failures to make full declarations on the completion of online application forms can be treated as unprofessional conduct. The Tribunal accepts that the conduct can be treated as unprofessional conduct. However, for the purpose of determining sanction, the conduct the subject of charges 2 and 3 should be treated as an aggravation of the totality of the conduct that has to be considered.

[29] Having found that the practitioner has behaved in a way that constitutes professional misconduct, the Tribunal must decide the appropriate sanction to be imposed in accordance with s 107 of the HO Act. The Tribunal must approach each case afresh and consider the particular circumstances of the case before it when determining the appropriate sanction.[2]

[30] The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between parties.[3] Nevertheless, where parties have reached an agreed position that agreement should only be disturbed if it "falls outside the permissible range of sanction for the conduct".[4]

[31] The paramount guiding principle is that the health and safety of the public are paramount.[5] The purpose of the disciplinary proceedings is to protect, not to punish.[6]

[32] Protection of the public includes protecting the public from the misconduct in question as well as similar conduct and incompetence of other practitioners and upholding public confidence in the standards of the profession. It is accepted that denouncing such misconduct operates as a deterrent to the individual concerned, as well as to the general body of practitioners.[7]

[33] Central to any determination of sanction must be an assessment of whether the practitioner presents an ongoing risk to the public of similar misconduct. The degree of insight, and any evidence of rehabilitation, demonstrated by the practitioner will be relevant.[8]

[34] Based on the removal of the conditions which were placed on Ms Hardy's registration, and the fact that Ms Hardy had voluntarily ceased working in a clinical capacity for some four years, the Health Ombudsman ultimately submitted that the appropriate order would be for Ms Hardy to receive a reprimand and no period of suspension. Ms Hardy said she would abide by the decision of the Tribunal.

[35] In support of the position in not requesting any formal period of suspension, the Health Ombudsman referred the Tribunal to the cases of Psychology Board of Australia v GA,[9] Honey v Medical Practitioners Board of Victoria,[10] Chinese Medicine Board of Australia v Garvin[11] and Medical Board of Australia v Leggett.[12] It was submitted that these cases serve to demonstrate that voluntary cessation of practice can be the equivalent to a de facto suspension.

[36] Depending on the facts of the case, voluntary cessation of practice will usually bespeak remorse for, and insight into, the misconduct. Like in Garvin, Ms Hardy's co-operation with police, guilty plea, co-operation through these proceedings and her voluntary removal from clinical practice all demonstrate her insight and remorse.

[37] Whilst Ms Hardy has remained registered, her registration is not a requirement of her current role. Given the steps taken by Ms Hardy during that period, the Tribunal accepts the submission made by the Health Ombudsman that it is appropriate to regard her time out of clinical practice as akin to a voluntary suspension from practice.

[38] The Tribunal is satisfied that Ms Hardy has addressed her addiction to Zopiclone. With the testing regime to which Ms Hardy has been exposed and the health assessments conducted, the Tribunal can be satisfied that Ms Hardy exhibits no signs that she will be inclined to engage in similar conduct again in the future. Both in her expression and by her actions, she is truly sorry. As Ms Hardy has stated, "I have no intention of this ever happening again."

[39] There is no doubt that the absence from the inevitable manual handling associated with most clinical work as a nurse has seen a significant improvement in Ms Hardy's neck pain. Ms Hardy also states that the absence of shift work has meant the stress about sleep is "pretty much eliminated". These are matters which Ms Hardy will need to be aware of if she should decide to return to clinical work in the future. The Tribunal is satisfied Ms Hardy has the necessary insight to appropriately manage her health issues, and to ask for help if it is needed. The position taken by the Board in uplifting the remaining conditions on her registration supports this statement. There remains no continuing need for personal deterrence. Ms Hardy poses no threat to the safety of the public.

[40] The issue of general deterrence remains. The Tribunal is in agreement with the Health Ombudsman and considers that a reprimand will achieve this legislative purpose.

[41] A reprimand is not a trivial penalty as it is a matter of public record and affects the reputation of the practitioner both in regards to the view of the public and the opinions of professional colleagues.[13] It has been described as "a public denunciation" of the conduct.[14] The reprimand will remain on the register until the National Board "considers it is no longer necessary or appropriate for the information to be recorded on the Register."[15]

[42] The Tribunal agrees with the applicant's submission that suspension is an unnecessary order given the voluntary cessation of practice of almost four years and the level of insight demonstrated by Ms Hardy.

[43] The Health Ombudsman made no application for costs and submitted that the appropriate order was that each party bear their own costs.

1. In relation to charge 1, pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Ms Hardy has behaved in a way that constitutes professional misconduct.
2. In relation to charges 2 and 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Ms Hardy has behaved in a way that constitutes unprofessional conduct.
3. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Ms Hardy is reprimanded.
4. Each party bears their own costs.

[1] The referral erroneously states that Ms Hardy was employed as a registered nurse at the THHS from 22 March 2014 to 15 October 2014. At the oral hearing, Ms Marshall for the Health Ombudsman confirmed this was an error and should read "22 March 2010".

[2] Psychology Board of Australia v Duangpatra [2012] QCAT 514, [18].

[3] See, for example, Medical Board of Australia v Martin [2013] QCAT 376 and Medical Board of Australia v Fitzgerald [2014] QCAT 425.

[4] Medical Board of Australia v Fitzgerald [2014] QCAT 425, [17].

[6] Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR, 183; Medical Board of Australia v Dolar [2012] QCAT 271, [30].

[7] Health Care Complaints Commission v Do [2014] NSWCA 307, [35].

[8] Medical Board of Australia v Blomeley [2018] QCAT 163, [142].

[9] [2014] QCAT 409 (GA).

[10] [2007] VCAT 526 (Honey).

[11] [2015] QCAT 244 (Garvin).

[12] [2013] QCAT 182 (Leggett).

[13] Medical Board of Australia v Grant [2012] QCAT 285, [49].

[14] Medical Board of Australia v Jones [2012] QCAT 362, [14].