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[2020] QCAT 165
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2020-05-05
Original judgment source is linked above.
The Director of Proceedings, on behalf of the Health Ombudsman
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 ("the applicant") has referred a matter regarding Niem Quoc Tang ("the respondent") to the Tribunal pursuant to and of the (Qld). The applicant seeks findings that the respondent has behaved in a way that constitutes professional misconduct and unprofessional conduct and consequent orders for sanction. There is no dispute between the parties as to the relevant facts of the matter or as to appropriate orders by way of the sanction. There is a dispute between the parties as to the proper characterisation of one of the charges against the respondent and whether such admitted conduct should be characterised as professional misconduct or unprofessional conduct.
[2] The respondent has been registered as an enrolled nurse since 11 April 2012.
[3] The referral to the Tribunal alleges two "charges". The facts particularised with respect to both the charges are not in dispute.
[4] Charge 1 relates to the respondent's conviction of criminal offences. On 16 October 2017 the respondent appeared before the Richlands Magistrates Court and pleaded guilty to two counts of obtaining financial advantage contrary to s 135.2(1) of the Criminal Code 1995 (Cth) ("the criminal offences").
[5] Between 8 August 2014 and 28 June 2016 the respondent was receiving a Youth Allowance and Newstart Allowance. As a condition of receiving such financial assistance the respondent was required to accurately declare his employment income. During that period the respondent made a total of 38 declarations declaring a total gross income of $14,232.93. In 36 of the declarations the respondent falsely reported his income by under declaring it and in two declarations the respondent falsely reported his income by declaring that he had earnt nil income. The respondent's correct employment earnings was a gross income of $42,869.79. The respondent's incorrect declaration of income resulted in him obtaining a financial benefit in the form of overpayments in the amount of $12,310.57.
[6] In April 2016 the respondent's offending conduct was detected by way of data matching between the Department of Human Services and the Australian Taxation Office. On 23 January 2017 the respondent was interviewed by officers from the Department of Human Services. The respondent at first stated that he did not know that he was being overpaid but eventually admitted to knowingly declaring his income because he needed extra money to meet living expenses and bills.
[7] On 7 August 2017 the respondent was charged with the criminal offences.
[8] On 16 October 2017 the sentencing Magistrate recorded convictions and ordered the respondent to perform 150 hours of community service and repay $12,310.57 to the Department of Human Services.
[9] The applicant submits that the respondent's conduct should be characterised as professional misconduct. The respondent disputes such contention and submits that the conduct should instead be found to be unprofessional conduct.
[10] The applicant submits that conduct similar to that of the respondent has been found in previous cases to amount to professional misconduct, citing Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338, Health Ombudsman v Armstrong [2018] QCAT 382 and Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1.
[11] The respondent submits that McKenzie, Armstrong and Williams are all examples of conduct significantly more serious than that of the respondent. The respondent also refers to some of the facts of Armstrong and the circumstances of the matter of Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691 as examples of less serious offending of such a nature that did not result in charges and findings of professional misconduct. The respondent submits that his conduct sits on the cusp of unprofessional conduct and professional misconduct. The respondent submits that the conduct should be characterised as unprofessional conduct falling at the upper end of the scale of such conduct rather than professional misconduct.
[12] In addition to the cases referred to by the parties, the Tribunal notes the decision of the Tribunal in Health Ombudsman v Chaffey [2020] QCAT 54.
[13] Whether conduct of a practitioner should be characterised as professional misconduct or unprofessional conduct depends upon a consideration of the particular facts and circumstances and an application of the terms of the respective definitions in s 5 of the Health Practitioner Regulation National Law (Queensland) ("National Law").
[14] "Unprofessional conduct" is defined in s 5 of the National Law as "professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioners professional peers" and is stated to include, amongst other things, "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] "Professional misconduct" is defined in s 5 of the National Law as including, in limb (a) of the definition, "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".
[16] The meaning of "substantial" was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [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."
[17] In deciding whether conduct should be characterised as "unprofessional conduct" or "professional misconduct", the Tribunal is required 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 professional peers. In making such a judgment in this case, I have been greatly assisted by the views expressed by the assessors.
[18] The respondent's dishonest conduct was deliberate and protracted. It involved 38 false declarations over a period of 17 months. The respondent's dishonesty resulted in him dishonestly receiving an excess of $12,000. The respondent's dishonest conduct did not cease of his own volition but only after detection by authorities. I conclude that the respondent's conduct was a large and considerable departure from the standard expected of a registered health practitioner of his level of training and experience.
[19] The Tribunal concludes that the respondent's conduct constitutes professional misconduct as defined in limb (a) of the definition of "professional misconduct" in s 5 of the National Law. As regards charge 1, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
[20] Charge 2 alleges a failure to give the Nursing and Midwifery Board of Australia ("the Board") notice of a relevant event in breach of s 130 of the National Law. Pursuant to s 130(1) and 130(3)(a)(i) of the National Law, the respondent was required to notify the Board within seven days that, on 7 August 2017, he had been charged with the criminal offences, offences punishable by 12 months imprisonment or more. The respondent did not give notice of the relevant event to the Board within seven days, that is, by 15 August 2017.
[21] The applicant alleges that such conduct should be characterised as unprofessional conduct. The respondent does not contest such a finding. As regards charge 2, the Tribunal finds that the respondent has behaved in a way that constitutes unprofessional conduct.
[22] As regard sanction, it must be recognised that the purpose of sanction in this jurisdiction is protective, not punitive, in nature. In the exercise of that protective jurisdiction it is appropriate for the Tribunal to take into account the importance of the maintenance of professional standards, the preservation of public confidence in the nursing profession and the need to deter the respondent and also other health practitioners from engaging in like conduct.
[23] The respondent is 32 years of age and was aged 26 to 28 years at the time of conduct the subject of the referral. He has no relevant prior criminal history and no other disciplinary history. The respondent has continued to maintain his registration and employment. He has discharged his obligations pursuant to the community service order and continued to make reparations as ordered by the court. He has completed a Bachelor of Nursing degree with a view towards obtaining registration as a registered nurse.
[24] Both parties submit that an appropriate order by way of sanction is one of a reprimand. A reprimand is not a trivial penalty and has the potential for serious adverse implications for a professional person. A reprimand would appropriately express the denunciation by the Tribunal of the respondent's conduct. The applicant does not submit and the Tribunal does not find that any preclusion from practice is required to meet the protective purposes of sanction.
[25] The determination of sanction remains a discretionary matter for the Tribunal notwithstanding any agreement between the parties. However, the Tribunal ought not depart from a proposed sanction agreed between the parties unless it falls outside of a permissible range of sanction.
[26] The Tribunal accepts that a reprimand is the appropriate order by way of sanction in this matter. Considerations of maintaining professional standards and public confidence in the profession require the denunciation by the Tribunal of the substantial departure by the respondent from professional standards required of him.
[27] 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.
[28] Accordingly, the Tribunal orders:
- As regards Charge 1, pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
- As regards Charge 1, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes unprofessional conduct.
- Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- Each party to the proceeding must bear the party's own costs for the proceeding.
Health Ombudsman
Niem Quoc Tang [2020] QCAT 165