Health Ombudsman v Haseldine [2022] QCAT 123

Queensland Civil and Administrative Tribunal|2022-04-07|Before: Judicial Member J

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[1] The Director of Proceedings on behalf of the Health Ombudsman referred this health complaint to the Tribunal on the 9th of December 2021. The referral contains one allegation, that on the 7th of December 2020 at the Brisbane Magistrates Court, the respondent pleaded guilty to one count of stealing between the 6th of August 2020 and the 9th of August 2020, for which she was sentenced to a 12-month good behaviour bond and no conviction was recorded. The applicant alleges that this conduct constitutes professional misconduct pursuant to section 5(a) of the Health Practitioner Regulation National Law (Qld) (National Law).

[2] The respondent was born on the 3rd of August 1957. At the relevant time, she was a registered nurse, employed as a clinical nurse at a private hospital in Brisbane. She had been so employed since the 19th of January 1998.
[3] The Health Ombudsman received a notification from the hospital on the 12th of August 2020, to the effect that the respondent had misappropriated Endone tablets intended for patients on a number of occasions in early August 2020.
[4] The Health Ombudsman commenced an investigation, and, in due course, the respondent surrendered her registration on the 30th of September 2020. She has cooperated fully with these proceedings. In an email to the Registry dated the 5th of December 2021, advising that she did not wish to make a submission, she noted that it was her intention never to work again. She expressed her deep shame and sorrow for her conduct.

[5] The respondent signed a statement of agreed facts with the applicant, which was filed in the Tribunal.
[6] Between the 7th and 9th of August 2020, whilst working in the medication dispensing room in the hospital, the respondent switched schedule 8 Endone tablets (5 milligram) within patient medication cups with over-the-counter Restavit tablets, placing the Endone tablet into her pocket. She did this at approximately 4.04 pm on the 7th of August 2020; approximately 9.23 pm on the 7th of August 2020; approximately 7.51 pm on the 8th of August 2020; and approximately 9.06 pm on the 9th of August 2020.
[7] On each occasion, the respondent had been accompanied by a nursing colleague. On the 11th of August 2020, the respondent's colleague reported concerns regarding her handling of the Endone medication to her supervisor. CCTV footage of the dispensing room was reviewed by hospital management, and the respondent was sent a formal letter, outlining allegations against her and inviting her to a meeting. Shortly after, she replied to the letter by email, indicating she would not attend the meeting, that she would be retiring from nursing, and apologising for disappointing management, her colleagues and her family.
[8] Police became involved, and on the 19th of August 2020, the respondent voluntarily attended the Holland Park Police Station and participated in a record of interview. She made full admissions to the above conduct and was subsequently issued with a notice to appear at the Brisbane Magistrates Court.
[9] As indicated above, she pleaded guilty at any early stage and cooperated fully with the police investigation.

[10] There can be no doubt that the stealing of schedule 8 drugs intended for patients and the substitution of other tablets is unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Such conduct breaches a number of provisions of the Code of Conduct for Nurses (Code of Conduct), and the ICN Code of Ethics for Nurses effective 1st of March 2018 (Code of Ethics), to which the respondent was subject at all relevant times. These Codes are admissible as evidence as to what constitutes appropriate professional conduct for nurses. By her conduct, the respondent has failed to maintain appropriate standards of integrity and honesty and to maintain confidence in a profession which sits at the very heart of our health system.
[11] The comparable cases referred to by the applicant in its submission, particularly Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014] VCAT 403; Health Ombudsman v Keast [2020] QCAT 197; and Health Ombudsman v AER [2021] QCAT 178 clearly support the submission made by the applicant that the respondent's admitted behaviour constitutes professional misconduct. Her conduct involved a serious breach of trust, not only the trust of her long-term employer, but also the trust invested in her by her colleagues, her patients and their families and carers. Although there is no evidence of harm, there was a potential for harm, particularly considering that Endone is a Schedule 8 controlled drug designed for pain relief.
[12] In its submission, the applicant fairly acknowledges that the respondent's conduct was not prolonged or repeated. It occurred over a three-day period on four occasions. The applicant also acknowledges fairly that the conduct was motivated by genuine physical pain from which the respondent was suffering at the time.
[13] The following remarks of the sentencing magistrate are noted:

I take into account that you do suffer from a significant physical issue for which you have been prescribed very strong medication, that you had tried to work through the pain for financial reasons associated with your husband's inability to work for a significant number of years - I think it was 18 or 20 years, that I read in the material - and as a result of your wage, he wasn't entitled to a pension. And so you kept working through the pain. I also take into account that thankfully, there was no adverse outcome for any patient as a result of this conduct which involved four tablets over four days.

[14] The Tribunal finds that the admitted conduct of the respondent constitutes professional misconduct as defined in section 5(a) of the National Law.

[15] It is well established that the purpose of proceedings such as this is to protect and not to punish. The main principle for administering the Health Ombudsman Act 2013 (Qld) (HO Act) and which informs the jurisdiction of the Tribunal in considering sanction is that the health and safety of the public are paramount.
[16] As set out in the relevant case law, the imposition of sanction may serve one or more various purposes, including preventing practitioners who are unfit to practise from practising; securing maintenance of professional standards; assuring members of the public and the profession that appropriate standards are being maintained and the professional misconduct or unprofessional conduct will not be tolerated; bringing home to the practitioner the seriousness of their conduct; deterring the practitioner from any future departures from appropriate standards; deterring other members of the profession who might be minded to act in a similar way; and imposing restrictions on practitioners' right to practise so as to ensure that the public is protected.
[17] In deciding the appropriate sanction in a particular case, the Tribunal considers factors including the nature and seriousness of the practitioner's conduct; insight and remorse shown by her; the need for specific or general deterrence; evidence of rehabilitation and/or steps taken by her to prevent reoccurrence of the conduct; mitigating factors giving context to and/or explanation for the conduct and other matters, including any past disciplinary history, periods of preclusion and non-practice; delay and effluxion of time; and cooperation during criminal and disciplinary proceedings.
[18] In this case, for the reasons noted above, the conduct was serious, however, the conduct was not prolonged. The respondent has shown deep remorse, shame and insight from the outset. She has removed herself from practice and from a profession which she obviously deeply loved.
[19] It is clear from the material that the motivation for this conduct, which was out of character for this woman who hitherto had an impeccable record, was a long-term health condition for which she had been prescribed oxycodone for pain relief. Her long-term general practitioner described her as suffering from "chronic severe disabling pain".
[20] Dishonest conduct by nurses attracts sanctions ranging from a reprimand through to a preclusion from practice. Mahon involved more serious conduct, and that practitioner had given an undertaking not to practise, which had been in place for 2.5 years at the time of the hearing. The respondent here says she will never practise again, and given her serious medical conditions, that statement is highly credible.
[21] The health and safety of the public is protected if she did apply for registration because the Board would have to consider in that unlikely scenario her then fitness to practise.
[22] Other recent decisions of the tribunal involving similar conduct by nurses include the matter of Health Ombudsman v Keast.[1] That practitioner misappropriated fentanyl intended for a patient on one occasion. In Health Ombudsman v AER,[2] the practitioner misappropriated one Endone tablet intended for a patient and a packet of Endone tablets belonging to another patient.
[23] In Keast, the practitioner was reprimanded. The Tribunal noted she had shown considerable insight into her behaviour and taken significant steps to address health and other issues, which had been contributing factors. As a result of immediate action conditions by the Health Ombudsman and the practitioner's decision not to renew her registration, she had been away from practice for over two years at the time of the hearing. Her cooperation in the proceedings, early plea of guilty to the criminal charges, and otherwise exemplary professional career were noted.
[24] In AER, the Tribunal accepted the joint position of the parties that a reprimand would address the protective purposes of sanction, noting that a reprimand is not a trivial penalty, but one having the potential for serious adverse implications for a professional person. The Tribunal accepted that in view of the practitioner's demonstrated remorse and insight and Board imposed conditions managing his health, it was not a case where specific deterrence was a significant factor.
[25] Those comments apply to the respondent in this case. As well as not being a trivial sanction, a reprimand stands as a denunciation of the respondent's professional misconduct and acts as a deterrent to others who may consider engaging in similar conduct.
[26] In the circumstances of the case, and for the reasons set out above, the Tribunal makes the following orders and findings:

(a) pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;

(b) pursuant to section 107(3)(a) of the Health Ombudsman Act, the respondent is reprimanded;

(c) each party must bear their own costs of the proceedings.

Health Ombudsman v AER [2021] QCAT 178

Health Ombudsman v Keast [2020] QCAT 197

Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014] VCAT 403

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