Health Ombudsman v Henson [2020] QCAT 72

Drugs Misuse Act 1986 (Qld), s 9, s 10

Health (Drugs and Poisons) Regulation 1996 (Qld), s 204

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

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

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

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Health Ombudsman v Antley [2016] QCAT 472

Health Ombudsman v Hardy [2018] QCAT 416

Health Ombudsman v Kiley [2019] QCAT 19

Health Ombudsman v Field [2019] QCAT 243

Health Ombudsman v McGuinness [2020] QCAT 1

[1] The Director of Proceedings on behalf of the Health Ombudsman ("the applicant") has referred a matter against Adam Murray Henson ("the respondent') to the Tribunal pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) ("HO Act"). The applicant seeks that the Tribunal make disciplinary orders against the respondent pursuant to s 107 of the HO Act.

[2] The respondent was first registered as a registered nurse in December 2015. The conduct the subject of the referral occurred within the first year of the respondent's registration. The conduct did not occur within the respondent's practice of the profession of nursing.

[3] The parties are agreed as to the facts constituting the subject of the referral. The parties are also agreed that the most serious conduct should result in a finding of professional misconduct. The parties are also agreed that the ultimate sanction should be one of a reprimand. There is an issue whether some secondary conduct the subject of the referral should result in separate findings of unprofessional conduct.

[4] The referral particularise three "Allegations".

[5] Allegation 1 relates to the respondent's commission of criminal offences and his conviction of those offences.

[6] On 20 July 2016, officers of the Crime and Corruption Commission ("CCC") served the respondent with an attendance notice requiring his appearance before an investigative hearing at the CCC. The notice stated that the respondent "must not disclose the existence of the Notice to any other person, unless with reasonable excuse."

[7] On 29 July 2016, the respondent attended a closed investigative hearing of the CCC. When questioned regarding any conversations he had had with any persons in relation to the notice, the respondent admitting telling another witness about the notice.

[8] On the same day as the investigative hearing, the respondent's residence was searched by officers of the CCC. The officers located a number of drugs, including tablets of modafanil (most commonly used for treatment of narcolepsy), tablets of ramipres (a blood pressure medication), syringes containing liquids believed to be steroids, and one used syringe which was not secured inside a sharps container or other secure storage. The respondent did not have a prescription for the modafanil or ramipres, which are schedule 4 medications requiring prescription. Such drugs had been sourced by the respondent over the internet without any lawful prescription.

[9] On 14 November 2016, the respondent was served with a notice to appear by police officers from the CCC. The notice to appear charged the respondent with the following offences:

• (a) Disclosure of a confidential document contrary to s 84(2) of the Crime and Corruption Act 2001;

• (b) Unlawful possession of restricted drugs, namely, modafanil, contrary to s 204 of the Health (Drugs and Poisons) Regulation 1996;

• (c) Unlawful possession of restricted drugs, namely, modafanil and ramipres, contrary to s 204 of the Health (Drugs and Poisons) Regulation 1996;

• (d) Failure to properly dispose of a needle or syringe contrary to s 10(4A) of the Drugs Misuse Act 1986;

• (e) Possessing a thing used in the commission of a crime contrary to s 10(1)(b) of the Drugs Misuse Act 1986 (an iPhone used by the respondent to exchange messages relating to the obtaining and distribution of steroids);

• (f) Possession of dangerous drugs, namely steroids, contrary to s 9 of the ; and

[10] On 23 May 2017, the respondent pleaded guilty to those charges in the Magistrates Court. He was then sentenced for those offences on 13 June 2017. The then Deputy Chief Magistrate noted the seriousness of the offence of disclosure of a confidential document, given that the integrity of CCC hearings depends upon such notices being complied with and that, if they are undermined, as the respondent's conduct did, then the ability of the CCC to detect and investigate crime is also undermined. With respect to that offence of disclosure of a confidential document, the respondent was fined $700 and no conviction was recorded. With respect to the other offences, (b) to (g) above, the respondent was fined $1500 and no convictions were recorded.

[11] The parties both submit that the conduct the subject of Allegation 1 should be categorised as professional misconduct. The seriousness of the offence of disclosure of a confidential document has already been noted. The seriousness of the conduct constituting the other criminal offences is obvious. Although such conduct did not occur in the course of the respondent carrying out his profession of nursing, registered nurses are entrusted with the management of restricted drugs and it is of utmost importance that they deal with all drugs, especially those requiring lawful prescription, with absolute propriety, whether it be in the course of carrying out their nursing duties or otherwise in the course of their personal life.

[12] The respondent's conduct resulting in the findings of guilt of the criminal offences constitute professional misconduct as defined within limb (a) of the definition of "unprofessional conduct" in s 5 of the Health Practitioner Regulation National Law (Queensland) ("National Law"), being "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".

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

[14] Allegations 2 and 3 relate to contraventions of s 130 of the National Law. Section 130 of the National Law relevantly provides:

• (1) A registered health practitioner ... must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner ... , give the National Board established for the practitioner's ... health profession written notice of the event.
• (2) A contravention of subsection (1) by a registered health practitioner ... does not constitute an offence, but may constitute behaviour for which health, conduct or performance action may be taken.
• (3) In this section:

(a) in relation to a registered health practitioner -

(i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or

(ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment ...

[15] As noted earlier, the respondent was charged with criminal offences punishable by 12 months imprisonment or more on 14 November 2016, when he was served with a notice to appear. The respondent did not provide written notice of that relevant event within seven days, that is, by 22 November 2016.

[16] The respondent has filed an affidavit in which he relevantly deposes as follows:

When I was initially handed a Notice to Appear in Court in relation to the charges, I did not appreciate or understand that this constituted me being 'charged' with an offence. I said to the officer that handed me the Notice words to the effect of:

The officer that handed me the Notice to Appear said to me words to the effect of:

'These are not charges; this is a Notice to Appear. You may get charged when you attend court.'

[17] The respondent deposes that he subsequently sought assistance from his union in relation to possible disciplinary action by his employer following notification of him being charged with the offences. The respondent deposes that he was referred to lawyers for assistance.

[18] On 12 December 2016, the respondent's lawyers wrote to the Australian Health Practitioner Regulation Agency ("AHPRA") enclosing a Queensland Police Service brief in relation to the charges against him and stating:

We write on the instructions of Mr Henson to provide the Nursing and Midwifery Board of Australia (NMBA) notice of a relevant event in accordance with s 130 of the Health Practitioner Regulation National Law Act 2009 (National Law).

We are instructed that on 14 and 15 November 2016, our client was charged with offences in accordance with the QP9 attached.

Our client instructs that at the time he was charged, he did not realise he was required to notify the NMBA or his employer. He believed that he was only required to notify the NMBA and his employer if he was convicted of the offences for which he was charged.

He became aware on or about 30 November 2016, through his employer ... that he should have advised them of the charges. This led him to question the need to report the charges to the NMBA. In the circumstances, he subsequently made inquiries of the QNU regarding his obligations and instructed us to act on his behalf in this regard.

He apologises for the delay in notification as he now realises he should have notified the NMBA by 21 November 2016.

[19] Allegation 3 relates to a failure to give the Board notice of the findings of guilt for the offences which occurred at the time of the respondent's plea of guilty to the charges on 23 May 2017. The respondent did not give notification to the Board of that relevant event within seven days, that is, by 30 May 2017, or indeed within seven days of his sentence for the offences on 13 June 2017, that is, by 20 June 2017.

[20] In his affidavit, the respondent deposes relevantly as follows:

On 15 June 2017, following my conviction, I sent an email to my union representative where I asked for advice regarding the steps I needed to take to notify the NMBA of my conviction. A series of emails were then exchanged whereby my representative advised me that he could notify the NMBA of the event once he had all the information and I subsequently provided information relating to my convictions and gave authority for him to contact the lawyer that had represented me in the criminal proceedings.

[21] The respondent exhibits to his affidavit an email exchange which occurred on 15 June 2017 between himself and an officer of his union. During that exchange, the respondent advises that he had pleaded guilty to the charges brought against him in court on 13 June 2017 and requests advice as to the next step he needs to take to inform AHPRA of the outcome of the hearing. The union officer responds, including as follows:

Could you please email me through any documents you have in relation to the outcome, including what sentence (if any) was handed down and whether a conviction was recorded. Alternatively I will try and contact Neil Lawler to obtain the information. You will need to advise AHPRA and Queensland Health, but I can do this on your behalf once I have all the information.

[22] Neil Lawler was the solicitor who appeared for the respondent in the Magistrates Court. There is a further email from the respondent to the union officer on the same day with contact phone numbers for Mr Lawler. It seems to be agreed that no one from the union, in fact, provided written notice to AHPRA and the Board of the relevant event as a result of that email exchange. The respondent also exhibits to his affidavit a subsequent email from himself to his lawyers dated 8 January 2018 in terms which tend to confirm the belief on the part of the respondent that the union officer was to advise AHPRA and the Board of the relevant event:

I have gone through my emails and found correspondence between ... my QNMU representative handling my case and myself, where [he] stated he would inform AHPRA of my court outcomes.

[23] In the meantime, the respondent's lawyers had, on 3 January 2018, provided notice of the relevant event to AHPRA and the Board, noting:

On 26 July 2017 our client informed us that he had pleaded guilty to the charges and was fined. Recent review of the file indicates that we did not appear to have advised AHPRA of our client's plea of guilty, conviction and the penalties as required pursuant to section 130(3)(a)(ii) of the Health Practitioner National Law Regulation Act. If this is the case and AHPRA has no record of our notifying them of this development, we apologise and do so now.

[24] The applicant submits, with respect to both Allegation 2 and Allegation 3, that the breaches by the respondent of s 130(3)(a)(i) and (ii) respectively would lead the Tribunal to find, in relation to each allegation, that the respondent has behaved in a way that constitutes unprofessional conduct. The applicant points to the specific recognition in s 130(2) of the National Law that a contravention of s 130(1) may constitute behaviour for which conduct action may be taken. The applicant contends that the conduct should be the subject of separate findings of unprofessional conduct, rather than simply being conduct aggravating the primary professional misconduct constituted by Allegation 1, for the purposes of sanction.

[25] The respondent concedes that contraventions of s 130(1) of the National Law can, according to the circumstances, be properly found to constitute unprofessional conduct and warrant findings of same. The respondent, however, submits that it is necessary for the Tribunal to consider the circumstances of any contravention of s 130(1) of the National Law in determining whether separate findings of unprofessional conduct should be made. The respondent refers to those circumstances that have been detailed by reference to the respondent's affidavit and relevant correspondence. The respondent submits that it is clear that there was no attempt by or intention on the part of the respondent to deliberately mislead the Board by his omissions to comply with the terms of s 130(1) of the National Law and that, in all the circumstances, there should not be any separate findings of unprofessional conduct; the conduct should simply be considered by way of aggravating the primary finding of professional misconduct in relation to Allegation 1.

[26] The respondent is quite correct in the concession that conduct of such type, that is, contraventions of s 130(1) of the National Law, may, according to the circumstances, constitute unprofessional conduct and justify separate findings of unprofessional conduct. Such conduct can clearly fall within the terms of the definition of "unprofessional conduct" in s 5 of the National Law, as constituting "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 including "a contravention by the practitioner of this Law".

[27] A consideration of the terms of the definition of "unprofessional conduct" also support the submission on behalf of the respondent that whether or not there should be a finding of unprofessional conduct depends upon an examination of the conduct in all the circumstances in which it occurred. Such an examination is necessary before the Tribunal can determine whether the conduct is of a lesser standard than that which might reasonably be expected of the health practitioner. Not all contraventions of such s 130(1) of the National Law would necessarily be caught.

[28] The parties have referred the Tribunal to previous decisions of the Tribunal where differing approaches have been taken to whether or not separate findings of unprofessional conduct have been made in relation to contraventions of s 130 of the National Law in addition to a finding of professional misconduct in relation to the most serious conduct basing a referral to the Tribunal.

[29] In Health Ombudsman v Antley [2016] QCAT 472, the Honourable JB Thomas AM QC, in relation to such a contravention, stated at [31]:

Charge 5 alleges a breach of a statutory duty to report criminal charges and convictions. The point of the statutory provision (National Law, s 130(3)(a)(i)) is to enable the professional board to consider circumstances that might bear on the fitness of a registered member to practise. Such a charge is secondary to the original misconduct that grounds the relevant charge and conviction, and whilst failure to report may justify a finding of unprofessional conduct, its usual effect is to add a relatively minor aggravation to the totality of the conduct that has to be considered. Having regard to the confused state that the respondent has shown throughout the conduct of these proceedings, that should be the effect of charge five in the present matter.

[30] I note that the Tribunal in that matter, in addition to a finding of professional misconduct in relation to charges one, two, three and four, in fact went on to make a separate finding that the respondent had behaved in a way that constitutes unprofessional conduct as alleged in charge five.

[31] There are subsequent decisions of the Tribunal in which both alternative approaches are exemplified, that is, where the Tribunal makes separate findings of unprofessional conduct regarding contraventions of s 130 of the National Law in addition to a finding of professional misconduct for the most serious conduct the subject of the referral, and other cases where, in similar circumstances, there is no separate finding of unprofessional conduct.

[32] An example of the first approach is Health Ombudsman v Hardy [2018] QCAT 416, where Judge Sheridan, Deputy President, stated at [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.

[33] In addition to a finding of professional misconduct in relation to charge 1 of the referral, the Tribunal, in relation to charges 2 and 3, made separate findings of unprofessional conduct.

[34] Examples of the alternative approach, where no separate findings of unprofessional conduct have been made, including Health Ombudsman v Kiley [2019] QCAT 19 and Health v Field [2019] QCAT 243, decisions of Judge Sheridan and, most recently, Health Ombudsman v McGuinness [2020] QCAT 1, a decision in which I constituted the Tribunal.

[35] In Health Ombudsman v McGuinness, I stated at [12]:

The applicant contends that the conduct the subject of charge 2 should be characterised as "unprofessional conduct" as defined in section 5 of the National Law. It is conduct that should be regarded as aggravating the professional misconduct of the respondent and thus encompassed within the ultimate finding of professional misconduct.

[36] I did not make any additional finding of unprofessional conduct in relation to charge 2, but instead proceeded on the basis that the finding of professional misconduct, primarily in relation to charge 1, also encompassed the conduct the subject of charge 2. I do not recall this issue being the subject of legal argument in that matter or certainly not to the extent that it has received attention in this matter.

[37] In my view, there is merit in the contention by the applicant that, where a contravention of s 130 of the National Law is found to meet the definition of unprofessional conduct, there should be a separate finding, for the purpose of the record, of unprofessional conduct.

[38] The comments of the Honourable J.B. Thomas AM QC in Antley, which seemed to have grounded the subsequent disparate approaches to this issue by differently constituted tribunals, should be considered in light of the fact that, notwithstanding those comments, the Honourable J.B. Thomas AM QC went on to make a separate finding of unprofessional conduct.

[39] I am of the view that the proper approach is that, if the conduct constituting a contravention of s 130 of the National Law properly fits the definition of unprofessional conduct in s 5 of the National Law, then there should be a separate finding of unprofessional conduct. The comments of the Honourable J.B. Thomas AM QC in Antley and subsequent statements of the Tribunal to a similar effect should be regarded as confined to the issue of sanction in that in most, if not all, cases, for the purposes of sanction, the contraventions of s 130 of the National Law are properly regarded as conduct secondary to the primary misconduct and aggravating the sanction required for such professional misconduct.

[40] That then requires the Tribunal to determine in relation to Allegations 2 and 3 whether the conduct the subject of those allegations should properly be characterised as unprofessional conduct as defined in s 5 of the National Law.

[41] In making that determination, the Tribunal is required to look at the conduct itself and the circumstances in which it occurred.

[42] In relation to Allegation 2, it is not at all clear in the circumstances whether the respondent had an understanding that he had been charged at the time he was served with a notice to appear, such that he would have become "aware" that a relevant event had occurred, within the terms of s 130(1) of the National Law.

[43] In all the circumstances, as detailed earlier, the Tribunal cannot find to the requisite standard of proof[1] that the professional conduct should be regarded as being of a lesser standard than that which might reasonably be expected of the respondent by the public or his professional peers, as required by the definition in s 5 of the National Law. In those circumstances, the determination of the Tribunal in relation to Allegation 2 is that the respondent has no case to answer and no further action is to be taken in relation to that matter.

[44] In relation to Allegation 3, the terms of s 130(1) of the National Law place an obligation on the registered health practitioner to give the Board written notice of a relevant event. There is no doubt that, at least from 13 June 2017 when the respondent was sentenced for offences in the Magistrates Court at Brisbane, he had become aware that a relevant event had occurred. The respondent thus had a legal obligation to give the Board written notice of such event. His email communications with an official of his union on 15 June 2017 did not properly discharge that obligation.

[45] There clearly was a contravention of s 130(1) and s 130(3)(a)(ii) of the National Law by the respondent. Notwithstanding the circumstances of that contravention and the Tribunal being satisfied that there was no attempt by or intention of the respondent to deliberately mislead either AHPRA or the Board, the Tribunal is satisfied to the requisite standard of proof[2] that the respondent's failure to ensure that he complied with s 130 of the National Law should be characterised as conduct that is of a lesser standard than that which might reasonably be expected by the respondent by the public or the practitioner's professional peers, so as to meet the definition of unprofessional conduct in s 5 of the National Law. In those circumstances, there should be a finding of unprofessional conduct with respect to Allegation 3.

[46] In considering the matter of sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. Purposes of sanction are protective, not punitive. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553-555, the imposition of sanction may serve one or more of various purposes, the most relevant in the circumstances of this case being:

• (a) securing maintenance of professional standards;

• (b) assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated; and

• (c) deterring other members of the profession who might be minded to act in a similar way.

[47] The conduct the subject of the referral occurred when the respondent was a relatively inexperienced registered nurse. It did not occur during the course of carrying out nursing duties. There is nothing in the respondent's employment history to suggest that there are any deficits in his professional performance. The conduct the subject of the referral does not raise concerns as to any present impact upon his professional performance. There is nothing to suggest that the protective purposes of sanction would require any preclusion from practice or any restrictions placed upon the respondent's practice as a nurse.

[48] There is a considerable body of evidence before the Tribunal to show that the respondent has considerable insight into the wrongness of his conduct and considerable remorse for same. He has continued to work as a nurse without any cause for disciplinary action. He has placed a favourable reference from a supervisor before the Tribunal. He disclosed his conduct to his employer and undertook an ethics course towards addressing it. He cooperated with the conduct of the criminal proceedings in the Magistrates Court and with the conduct of these disciplinary proceedings before the Tribunal. He has no other criminal history apart from the findings of guilt the subject of the referral. He has no other disciplinary history except for the matters the subject of the referral.

[49] In all those circumstances, the parties jointly submit that a reprimand would satisfy the protective purposes of sanction in this matter. A reprimand is not a trivial penalty and has the potential for serious adverse implications. It acts as a public denunciation of the conduct and is a matter of public record affecting the reputation of a practitioner.

[50] The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties. However, the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.

[51] The Tribunal accepts that a reprimand is the appropriate order by way of sanction in this matter. The respondent's conduct deserves denunciation by the Tribunal.

[52] Both parties submit that there would be no reason for the Tribunal to depart from the ordinary position that the parties bear their own costs of the proceedings, and that will be reflected in the orders of the Tribunal.

[53] Accordingly, the Tribunal orders:

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 that matter.
3. In relation to Allegation 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.
4. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
5. Each party must bear the party's own costs for the proceedings.

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