Health Ombudsman v McGuinness [2020] QCAT 1

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

Health Ombudsman v Barber [2017] QCAT 431

Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 578

Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 579

K Carter-Brown (sol) of the Office of the Health Ombudsman

[1] The Director of Proceedings on behalf of the Health Ombudsman ("the applicant") has referred a health service complaint against Shaun Alexander McGuinness ("the respondent") to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) ("HO Act"). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct and consequent orders for sanction.

[2] The respondent does not oppose a finding of professional misconduct and admits the following facts.

[3] The respondent was first registered as an enrolled nurse on 18 July 2012. He was aged 21 years and employed by a southeast Queensland Hospital and Health Service at the time of the conduct the subject of the referral. The conduct did not relate to the respondent's practice as an enrolled nurse.

[4] The applicant has particularised the conduct by way of two charges. Charge 1 consists of the respondent's conviction for criminal offences and charge 2 relates to the respondent's failure to notify the Nursing and Midwifery Board ("Board") of a relevant event as required by section 130 of the Health Practitioner Regulation National Law ("National Law").

[5] Charge 1 consists of the respondent's conviction of serious drug offences. On 8 January 2015 police executed a search warrant at the respondent's residence and located the following:

• (a) 66 clip seal bags containing a total of 4.461 grams of MDMA;

• (b) 11 clip seal bags containing a total of 304 grams of cannabis;

• (c) 50 tabs of lysergide;

• (d) 1 diazepam tablet (without a prescription);

• (e) 30 dexamphetamine tablets (without a prescription);

• (f) 10 endone tablets (obtained with a valid prescription years earlier);

• (g) an electric grinder and scales; and

• (h) $3,030.

[6] On the same date the respondent was arrested and voluntarily participated in an interview during which the respondent made full and frank admissions, including admissions to offences of trafficking without which the respondent could not have been convicted of offences of trafficking.

[7] On 21 June 2016 the respondent appeared in the Supreme Court at Brisbane and pleaded guilty to and was convicted of the following offences:

• (a) Trafficking in cannabis;

• (b) Trafficking in MDMA;

• (c) Possessing MDMA in excess of 2 grams;

• (d) Possessing amphetamine, cannabis, diazepam and lysergide;

• (e) Possessing a sum of money obtained from trafficking in dangerous drugs;

• (f) Possessing utensils or pipes for use with drugs; and

• (g) Possessing property suspected of having been used in the connection with the commission of a drug offence.

[8] The respondent was sentenced to terms of four years imprisonment with respect to the trafficking counts and lesser concurrent terms of imprisonment in relation to other indictable offences. All terms of imprisonment were suspended immediately for an operational period of four years.

[9] The respondent was sentenced on the basis that the trafficking in cannabis occurred during a three and a half month period between October 2014 and January 2015. The trafficking in cannabis was for profit with supplies of cannabis on a regular basis. The trafficking in MDMA occurred over a period of five and a half weeks between December 2014 and January 2015. The possession of MDMA was of 4.461 grams of that drug with a purity of about 70 per cent. The respondent was sentenced on the basis that such possession was for a commercial purpose. Mitigating factors included the respondent's frank admissions to police, early pleas of guilty, youth and lack of criminal history. The respondent's offending was partly motivated by seeking popularity with his peer group. The results of drug testing showed that the respondent had been drug free for a considerable period of time leading up until his sentence. The sentencing judge noted the respondent's loss of employment as an enrolled nurse as a consequence of his offending behaviour.

[10] Charge 2 related to the respondent's failure to notify the Board of a relevant event. Pursuant to sections 130(1) and 130(3)(a)(i) of the National Law the respondent was required to notify the Board within seven days that on 8 January 2015 he had been charged with criminal offences punishable by 12 months imprisonment or more. The practitioner did not give notice, written or otherwise, of the relevant event to the Board within such period.

[11] The respondent does not resist a finding that the conduct the subject of charge 1 should be characterised as professional misconduct. The Tribunal decides that the conduct meets the definition of the third limb of the definition of "professional misconduct" in section 5 of the National Law, being "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." The Tribunal decides, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.

[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.

[13] On 10 September 2015 the respondent gave an undertaking to the Board to:

• (a) only practice in a position approved by the Board;

• (b) only administer, obtain or possess Schedule 4 or eight medications under direct supervision;

• (c) attend random urine drug tests.

[14] Such undertaking remained in effect until the respondent surrendered his registration on 19 February 2016. The respondent has not been registered since that date. The respondent has undertaken tertiary studies towards a career outside the health profession. He has no current intention of again seeking registration as a health practitioner.

[15] The respondent has displayed remorse for, and insight into, his conduct by his co-operation with the criminal investigation and sentencing proceedings and his co-operation in disciplinary proceedings before this Tribunal. He has successfully completed a drug rehabilitation program and participated in treatment by a psychologist. The respondent has not used illicit drugs or committed any further offences since the conduct occurred. He complied with the conditions of his undertaking prior to surrendering his registration.

[16] The applicant submitted, with particular reliance upon the decisions of the Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 578 and 579, that the Tribunal would consider an order that the respondent be disqualified from applying for re-registration for a period of up to 12 months. The applicant conceded that the period of the respondent's voluntary cessation of practice since his surrender of registration should be taken into account in deciding what, if any, period of further preclusion from practice is required. The Tribunal considers that there are factors which distinguish the case of the respondent from that of Brereton. The respondent in Brereton was an older man with prior criminal history whose offending involved possession of a firearm. It is clear that the Tribunal concluded that a further period of 12 months was required for the respondent in that case to be able to prove his capacity to return to nursing. The Tribunal agrees with the comments of Judge Sheridan, Deputy President, in Health Ombudsman v Barber [2017] QCAT 431 at [52] in distinguishing Brereton from the circumstances of the case the Tribunal was then considering. In contrast to the respondent in Brereton, the respondent in this matter should properly be regarded as young, naïve and influenced by his peer group in engaging in his offending. The decision in Brereton does not provide a sound basis for any further period of preclusion from practice in the circumstances of the respondent.

[17] The respondent has been precluded from practice as an enrolled nurse as a consequence of his surrender of registration for a period approaching four years. The purposes of sanction in this jurisdiction are protective, not punitive. The conduct was not related the respondent's practice as an enrolled nurse. There is nothing to suggest that there is any immediate protective purpose to be fulfilled by any further preclusion from practice. Considerations of personal and general deterrence are adequately addressed by the past period of preclusion from practice and the denunciatory effects of a finding of professional misconduct and a reprimand. The Tribunal determines that no further preclusion from practice is required to meet the protective purposes of sanction.

[18] The maintenance of public confidence in the nursing profession is a significant factor in determining sanction in this matter. The public places a high level of trust in nurses and they are expected to act in the best interests of patients and the public. Although his conduct did not impact directly on patients, the respondent placed the public at risk of harm by trafficking in dangerous drugs. His conduct was such as to potentially undermine the public's trust in the profession of nursing. The respondent's conduct was a serious departure from the standard expected of registered nursing professionals and requires denunciation by the Tribunal. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.

[19] The applicant submitted that each party should bear its own costs and that will be reflected in the orders of the Tribunal. Accordingly the Tribunal orders as follows:

1. Pursuant to section 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. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Each party must bear the parties' own cost for the proceeding.