Health Ombudsman v JTM [2020] QCAT 394

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

Health Care Complaints Commission v Haasbroek [2019] NSWCATOD 177

Health Ombudsman v Field [2019] QCAT 243

Health Ombudsman v Niem Quoc Tang [2020] QCAT 165

Nursing and Midwifery Board of Australia v Hogan [2018] TASHPT 3

Nursing and Midwifery Board of Australia v Mura [2019] VCAT

Nursing and Midwifery Board of Australia v NH [2014] SAHPT 2

Director of Proceedings on behalf of the Health Ombudsman

• [1] The applicant filed an amended application on 25 September 2019, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law 2009 (Qld) (the National Law). In the alternative, the applicant alleges in the referral that the respondent has behaved in a way that constitutes unprofessional conduct.
• [2] The referral contains one allegation, which relates to the respondent's conviction on his own plea of guilty to one count of assault occasioning bodily harm whilst armed (domestic violence offence) in the Southport District Court on 17 November 2017. The parties filed an agreed statement of the relevant facts and agree on the appropriate sanction. They diverge on the issue of how the Tribunal should characterise the respondent's conduct.

• [3] The respondent was born on 19 January 1976. He is currently 44 years of age. He was 40 at the time of the relevant conduct. He was registered as an enrolled nurse in 2008. He completed a Bachelor of Nursing in 2009 and was registered as a registered nurse in 2010. In 2014, whilst employed as a registered nurse at Logan Hospital, he injured his back and he has not worked as a registered nurse since, however, as of the date of the filing of the referral, he was still registered with the Nursing and Midwifery Board of Australia (the Board). His present registration circumstances are unknown to the Tribunal.
• [4] When the respondent was charged with various offences arising out of the incident on 9 October 2016, the Queensland Police Service made a mandatory notification to the Health Ombudsman (HO) who suspended the respondent's registration on 24 January 2017. On 28 March 2018, the HO referred the respondent to AHPRA to investigate whether or not he had an impairment. At the request of the Board, the respondent was assessed by a consultant psychiatrist, Dr Nigel Prior, on 12 October 2018, who provided a report dated 18 October 2018[1]. As Dr Prior notes in his report, as a result of the episode on 9 October 2016, the respondent was subject to a lengthy domestic violence protection order under the Domestic and Family Violence Protection Act 2012 and, by the time of the consultation, had attended courses in anger management and parenting. He was then having five hours of unsupervised access to his young daughter each week.
• [5] Dr Prior noted that the respondent showed evidence of an Alcohol Substance Abuse Disorder and an Adjustment Disorder with mixed anxiety and depressed mood, both of which were stable by the time of the consultation. He noted that the adjustment disorder was being appropriately treated with medication and psychotherapy under the auspices of the respondent's general practitioner, and that his substance abuse disorder was in sustained remission.
• [6] As a consequence, the Board imposed conditions on the respondent's registration, and, on 6 February 2019 OHO revoked the suspension of his registration. Relevantly, that means that, although he was not working as a registered nurse at all relevant times in a legal sense, his registration was suspended for two years.
• [7] The relevant conduct the subject of the condition and the subject of the referral occurred on 9 October 2016. It is common ground, therefore, that he was then registered with the Board, a health service provider within the meaning of s 8(a)(i) of the Act, and subject to the registration standards, codes and guidelines approved by the Board which, to the extent that these are relevant to the respondent's conduct, are rendered admissible as evidence of which constitutes appropriate professional conduct in practice for a member of the health profession by virtue of s 41 of the National Law.

• [8] In summary, at around about 6.00 pm on 9 October 2016, the respondent, who had consumed five glasses of wine up to 2.30 pm on that day, became involved in an argument with his partner and her then 15 year old daughter (his stepdaughter), in the kitchen of their home. All the conduct occurred in the presence of that child and while her six year old brother, also the stepson of the respondent, and the 18 month old daughter of the respondent and his partner were in the house or present, and able to see the conduct. Prior to this day, the respondent and his partner had lived in a de facto relationship for approximately three years.
• [9] In the course of the argument, the respondent armed himself with a kitchen knife and grabbed his partner around the throat from behind with his left hand and held the knife in his right hand. She attempted to break his grip by biting at his hand. The respondent held the knife above her head and made stabbing motions towards the top of her head and, at one stage, she could actually feel the tip of the knife on the top of her head.
• [10] The respondent's 15 year old daughter screamed at the respondent to let her mother go, which he eventually did, but he then struck her in the face with an open palm causing her lips to swell, her glasses to be dislodged and her nose to bleed. Not surprisingly, she experienced immediate pain. The respondent's partner and all of the children then retreated into the older daughter's bedroom where, in effect, they barricaded themselves in by leaning against the door to prevent him from entering.
• [11] At some point, the door was opened, and the respondent was still armed with the knife. In what must have been a terrifying ordeal, both to his female partner and to the children, he then insisted to his partner that he would exchange the knife for his daughter who she was holding. She did this, and I infer the respondent then calmed and they walked outside to wait for the police to arrive. When the police arrived, it appears that the respondent resisted and was forcibly detained and suffered some injuries, but none of that conduct is relevant to the allegation.
• [12] The respondent has always insisted that he was not intoxicated when he assaulted his partner and the Tribunal proceeds on that basis. As his Honour Judge Butler QC observed when sentencing the respondent on 17 November 2017 in the District Court, acting in such a way while sober is equally as bad, if not worse, as behaving that way when intoxicated. His Honour described the respondent as being emotional and distraught at the time of the offence. The respondent had no previous criminal history, pleaded guilty at an early stage and expressed remorse, and his Honour had material before him indicating the respondents' efforts to address the causes of his offending behaviour by undertaking counselling and treatment. He was sentenced to six months imprisonment, but that term was wholly suspended for a period of two years and a conviction was recorded as a matter of law.

• [13] "Professional misconduct" is defined in s 5 of the National Law as follows:

Professional misconduct, of a registered health practitioner, includes -

(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; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

• [14] "Unprofessional conduct" is defined in section 5 of the National Law as follows:

Unprofessional conduct, of a registered health practitioner, means 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 includes -

...

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession.

• [15] The applicant submits that the conduct the subject of the referral satisfies both 5(a) and (c) of that definition of professional misconduct. The applicant has the onus of proving professional misconduct to the simple standard as governed by the principles enunciated in Briginshaw v Briginshaw [1938] HCA 34; 1938 60 CLR 336. The respondent submits that his conduct falls short of professional misconduct, but that it amounts to unprofessional conduct as defined in the National Law.
• [16] It is convenient to deal with a number of submissions advanced by the respondent on his behalf by his solicitors on this issue. In my view, the arguments impermissibly conflate the role of the Tribunal with the statutory roles of the Board and/or the regulators such as the OHO and AHPRA in relation to disciplinary matters. It is not relevant to the Tribunal's powers set out in Part 10 Division 3 of the Act, and in particular, s 107(1) and (2), that the Board has not made a finding that the respondent is not a fit and proper person to hold registration. It is also not relevant to this issue that "neither of the co-regulators sought to strip (the respondent) of his registration."[2]
• [17] The actions of the regulators post the impugned conduct and leading up to a determination by this Tribunal, may be very relevant to the issue of sanction, but it is only the Tribunal that can decide if proved conduct by a health practitioner amounts to professional misconduct and/or unprofessional conduct.
• [18] The regulators are concerned with issues such as conduct and/or impairment that may affect the health and safety of the public[3], and as is the Tribunal when considering the issue of sanction. As s 107(b) of the Act states, the focus is on the behaviour of the respondent, which was the subject of the allegation in disciplinary referral, bearing in mind that it is for the applicant to prove the allegation on the balance of probabilities.
• [19] In undertaking its statutory role under s 107(2)(b) of the Act, the Tribunal is required to focus on the proved conduct and "to make a judgment as to the degree of departure from the standard reasonably expected of the practitioner by the public or the practitioner's peers..."[4]
• [20] In Niem Quoc Tang [2020] QCAT 165, the Deputy President of QCAT, his Honour Judge Allen QC referred to the meaning of the term "substantial" in the definition in s 5 in the National Law. His Honour said:

The meaning of "substantial" was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Professional Conduct Commissioner (No2) [2015] SASCFC 167 at [110]:

...it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, 'substantial' connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

• [21] I agree with the respondent that the conduct of the practitioners in the cases I was referred to by the applicant in its submission (Health Ombudsman v Field [2019] QCAT 243, Nursing and Midwifery Board of Australia v NH [2014] SAHPT 2 and Nursing and Midwifery Board of Australia v Hogan [2018] TASHPT 3) are objectively more serious than the proved conduct of the respondent here, and that, as a general proposition, misconduct in the course of performance of the practitioner's duties, particularly by the commission of criminal offences, is regarded more seriously (in disciplinary proceedings) than misconduct committed outside of such duties.
• [22] Again, in my view, the consequences of the respondent's criminal conduct (conviction and punishment, suspension of registration, etc) is not particularly relevant to the Tribunal's role of characterising the actual conduct objectively as required by the Act. These matters are otherwise directly relevant to sanction.
• [23] Section 5(c) of the National Law specifically deals with conduct that does not necessarily occur in connection with the practitioner's professional duties, and s 5(a) refers to conduct which, inferentially, can occur in connection with the practitioner's professional duties or otherwise.
• [24] The respondent's argument about the co-regulator's attitude to the respondent's registration also misconceives what is a proper construction of s 5(c). The point is well made in Nursing and Midwifery Board of Australia v Mura [2019] VCAT at [80]:

It is important to note that a finding of professional misconduct under subparagraph (c) of itself carries with it a finding that the misconduct is such that a person is not a fit and proper person to hold registration. That does not mean a person is automatically to be disqualified from registration, or even suspended, if the Tribunal finds, by reason of their conduct they are not a fit and proper person to hold registration. There may be good reasons why, despite making such a finding about the conduct they engaged in, the circumstances surrounding their misconduct, or their circumstances by the time the Tribunal comes to decide on the appropriate determinations, disqualification is not warranted.

• [25] The "Code of Professional Conduct for Nurses" [5]relevantly states:

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.

• [26] The conduct admitted by the respondent is very serious. It involved the use of a knife in a highly emotionally charged situation, and actual violence committed on the respondent's female partner which caused a number of injuries to her face. It would have been undoubtedly a terrifying incident for her and her children. It was conduct that had the potential for even more serious consequences, particularly as a result of the respondent's apparent deliberate decision while not intoxicated, according to him, to arm himself with a knife.
• [27] In my opinion, this conduct falls substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and was, at the time, conduct inconsistent with him being a fit and proper person to hold registration in the nursing profession. The domestic violence offences committed by the respondent in Health Care Complaints Commission v Haasbroek [2019] NSWCATOD 177, although more serious, nonetheless led the Tribunal to observe (correctly, in my view) that criminal conduct of this kind involving violence against women in a domestic setting is abhorrent.
• [28] The Tribunal is satisfied that the proved conduct in allegation 1 amounts to professional misconduct.

• [29] There is no doubt that the respondent has done much to address the causes of his professional misconduct. He has shown some insight and remorse by cooperation with both the criminal process and these disciplinary proceedings and the regulators during the course of the subsequent hearings. As noted earlier, Dr Prior gave him a favourable medical assessment, and he has attended counselling and undertaken treatment for his adjustment disorder and depression.
• [30] Although he has not worked since 2014 as a nurse, and his registration status is not presently known, the actions of OHO effectively led to a 24-month suspension of his registration. It is relevant that both parties agree with the appropriate sanction and the Tribunal should not depart from that agreement unless the agreed sanction falls outside the permissible range of sanctions for the relevant conduct, bearing in mind that the purpose of these proceedings is protective rather than punitive.
• [31] To the extent that the health and safety of the public is now relevant to this respondent, that is a matter for the Board in the event that the respondent again seeks to practise as a nurse.
• [32] The orders of the Tribunal are as follows:
  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.
  3. Each party bear their own costs.

[2] Tab 2 HB para 13 (no authority is cited to support this proposition)

[3] Section 3A National Law; Section 4 of the Act

[4] HO v Niem Quoc Tang [2020] QCAT 165 at [16]- [17]

[5] Admissable as evidence of proper professional conduct and practice: Section 41 of the National Law