Health Ombudsman v Horsburgh [2023] QCAT 368

• [2] Extensive written submissions were filed on behalf of the applicant. None were filed on behalf of the respondent. This matter was able to proceed on the papers and accordingly, there were no appearances. The fact the respondent filed no submissions is not at all that surprising given she has not practised as a registered enrolled nurse since February 2022 and has indicated she has no intention of practising in that capacity at any time in the future.

• [3] By way of some background, the respondent is currently 50 years of age and was a registered health practitioner for the purposes of the Health Ombudsman Act 2013 (Qld) ('HO Act') and under the Health Practitioner Regulation National Law (Queensland) ('National Law'). She had been practising as a registered enrolled nurse. She had no criminal history prior to the offending that brought her before this Tribunal. She also had no disciplinary proceedings brought against her or any notifications of untoward conduct as a professional nurse.
• [4] Following investigations conducted by the Health Ombudsman, immediate action was taken and conditions were imposed. Those conditions prohibited the respondent from having any contact with patients under the age of 18 years. On 14 July 2022, the Health Ombudsman removed those conditions. Since that time, the respondent's nursing registration has lapsed, and she has failed to renew her registration. Notwithstanding that the respondent is no longer a registered nurse, the Tribunal still has the jurisdiction to deal with this matter.

• [5] The nature of the conduct that brings the respondent before this Tribunal is as follows. On 11 February 2022 in the District Court at Beenleigh, the respondent pleaded guilty and was convicted of the following criminal offences:

(a) one count of assault occasioning bodily harm;

(b) four counts of common assault; and

(c) two counts of choking and strangulation in a domestic setting.

• [6] A victim impact statement had been provided to the sentencing Judge during the sentencing proceedings, by the respondent's son. Since the offending, the victim has resided elsewhere. At the time of the offences, the victim was only 10 years of age.
• [7] On 11 February 2022, the respondent pleaded guilty and was sentenced by her Honour McDonnell DCJ. In her sentencing remarks, her Honour noted that the respondent had entered a timely plea of guilty and had expressed remorse. Her Honour also noted that the respondent had been abstinent from alcohol since August 2020 and had taken a number of steps to rehabilitate herself, including completing a Family Transition Triple P Positive Parenting Program.
• [8] The respondent had also attended five sessions of counselling and completed a program with the Drug Awareness Rehabilitation Management Association. The sentencing Judge also considered a report dated 25 August 2021 from the respondent's treating psychiatrist, in which he reported that the respondent had been diagnosed with chronic post-traumatic disorder, bipolar disorder and alcohol use disorder. It was the doctor's opinion that: "incarceration would affect her mental health adversely".[1]
• [9] In sentencing the respondent, her Honour noted the seriousness of the offending, that it involved a prolonged course of violence and, being inflicted on a 10-year-old child, involved a gross breach of trust. The sentencing Judge found that conviction should be recorded in respect of all the counts and imposed:

(a) a head sentence, in respect of the two counts of choking and strangulation in a domestic relationship, of two years and three months imprisonment;

(b) in respect of the offences of common assault, three months imprisonment for each count; and

(c) in respect of the offence of assault occasioning bodily harm whilst armed, 10 months imprisonment.

All sentences were ordered to be served concurrently with an immediate parole release date.

• [10] There can be no doubt that the conduct of the respondent falls comfortably within the description of professional misconduct. It was submitted on behalf of the applicant that the respondent's action involved repeated assaults on a 10-year-old victim. It was also submitted, and it can be readily accepted, that the choking offences are particularly serious. Also, there was a serious significant power imbalance given the age of the victim. It was also submitted and can be accepted that the respondent's conduct was completely inconsistent with the professional and ethical obligations of a registered enrolled nurse. Unsurprisingly, as the sentencing Judge noted, the violence inflicted on the victim would have been a terrifying experience.
• [11] Notwithstanding the seriousness of the offending, there are a number of matters that need to be taken into account in determining the final outcome of this proceeding. It can be accepted that the respondent has demonstrated insight and remorse for her conduct. As the sentencing Judge noted, this was reflected in a timely plea of guilty. Her Honour also noted and accepted that the respondent was truly sorry and ashamed for her actions. Also, as already referred to, the respondent has taken a number of steps to address her difficulties, particularly in respect of her health and most significantly her mental health.
• [12] In this regard, the respondent's treating psychiatrist reported that she had tried several different forms of medication to treat her bipolar disorder, but she was not able to tolerate the side effects of those medications. At the time, she was also taking a number of antidepressant medications. There was a further report from a consultant psychiatrist, who expressed the opinion that the respondent's consumption of alcohol combined with an adverse reaction to the medications she was taking at the time, "may have caused some impairment in her capacity to know that she ought not do the acts".
• [13] It would appear that the respondent's capacity to think clearly was impeded by her consumption of alcohol mixed with her medication at the time. That of course does not provide any excuse for her conduct, but it does however, provide some relevant insight as to her mental capacity at the time.
• [14] Proceedings such as this of course are not concerned with inflicting further punishment upon the respondent. The respondent has already been dealt with in respect to her criminal conduct by the District Court. These proceedings are designed to, as far as practicable, ensure the safety of the public. The written submissions provided by the applicant include references to a number of cases. I will refer but to one of those. In the case of the Legal Practitioners Conduct Board v Ardalich,[2] the Acting Chief Justice said:

Mental illness of a practitioner may cause or contribute towards his commission of acts constituting unprofessional conduct - cannot excuse that conduct but may be a mitigating circumstance in considering what disciplinary orders should be made.

I do not use the words "mitigating circumstances" in the sense in which they may be used in the context of the criminal sentencing process.

The primary function of a disciplinary proceeding is not to punish the practitioner but to protect the public and the administration of justice by ensuring that the practitioners live up to the high standards expected of them.

In determining the approach to be adopted in a particular case, it may be relevant to take into account for the fact that the mental illness of the practitioner is of temporary duration and unlikely to occur or may be successfully treated. Consideration could then be given to the question whether or not the practitioner should be permitted to resume practice, perhaps after a period of suspension or subject to condition.

There will be cases, however, where the offending conduct was so serious and particularly where it has persisted over a period of time, that evidence of a mental state or illness which explains the conduct cannot be permitted to deflect the Court, acting in the public interest, from striking off the practitioner.

• [15] In cases such as this, the final determination of this Tribunal must also send an appropriate message of deterrence. Given the respondent's current situation concerning her employment and intention not to return to practise as a nurse, may mean that personal deterrence is not such a significant factor. General deterrence however is clearly a relevant matter in circumstances such as this. A clear message must be sent that conduct such as this will result in serious consequences, and thereby hopefully deterring others from participating in such conduct. As already referred to, that such serious outcomes may follow is designed not to further punish the practitioner for her conduct but to, as far as practicable, provide for the protection of the public and also the protection of the reputation of the nursing profession.

• [16] On balance, the Tribunal has reached the conclusion that the relief sought by the applicant is appropriate. Accordingly, it is the decision of the Tribunal that:

1. The respondent has behaved in a way that constitutes professional misconduct.
2. The respondent is reprimanded.
3. The respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months from the date of this order.

• [17] Given that the respondent, at least at the present time, is unlikely to return to her profession, the disqualification period may be somewhat redundant in many respects. However, it is considered that a period of disqualification is necessary in this case for the purposes of general deterrence.

[2] [2005] SASC 478.