Health Ombudsman v Sabo [2019] QCAT 256

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 92, s 93,

Health Ombudsman v Antley [2016] QCAT 472, cited

Health Care Complaints Commission v Robertson [2011] NWNMT 5, cited

BR Moses, counsel of the Office of the Health Ombudsman

[1] The current proceedings arise out of disciplinary matters referred to the tribunal on behalf of the Health Ombudsman against the respondent, Mr Sabo, pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The referral was filed on 31 January 2018 (initial referral). An amended referral was filed on 15 October 2018 (amended referral).

[2] QCAT is the responsible tribunal with jurisdiction to hear and decide the matter in accordance with s 104 of the HO Act.

[3] The charges in the referral relate broadly to Mr Sabo having been convicted of various criminal offences, providing false information to the Nursing & Midwifery Board of Australia (the Board) in his renewal application in failing to disclose that he had been convicted of criminal offences, and having failed to notify the Board as required by s 130 of the Health Practitioner Regulation National Law (Qld) (National Law) that he had been charged with and convicted of criminal offences.

[4] The Health Ombudsman alleges that as a result of the charges, Mr Sabo has engaged in professional misconduct, or in the alternative, unprofessional conduct as those terms are defined in the National Law. It is alleged that if there were two or more counts of unprofessional conduct found then, in accordance with the definition, that conduct could amount to professional misconduct.

[5] Mr Sabo was personally served with the initial referral filed but did not participate in the proceedings. Mr Sabo departed Australia on 14 March 2018 and as at the date of hearing was residing in Florida in the United State of America.

[6] Mr Sabo made no appearance at any directions hearing, either in person or by telephone, filed no response to the referral nor any sworn evidence or written submissions to the Tribunal.

[7] The matter proceeded before the Tribunal by way of affidavit evidence filed on behalf of the Health Ombudsman together with submissions by the Health Ombudsman as to facts and sanction. All material filed by the Health Ombudsman was served on Mr Sabo with affidavits confirming service being filed.

[8] A notice of hearing was served on Mr Sabo as required by s 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). There was no appearance by Mr Sabo at the hearing held on 11 December 2018 and the hearing was heard in his absence pursuant to s 93 of the QCAT Act.

[9] Mr Sabo was granted general registration as a registered nurse on 5 December 2002.

[10] In the period between 1 May 2005 and 14 May 2015, Mr Sabo was employed by UnitingCare Health and worked as a registered nurse at Saint Andrews' War Memorial Hospital.

[11] The Health Ombudsman was notified of a complaint by letter dated 23 January 2015 from the Queensland Health Police Liaison Unit of the Queensland Police Service. The letter informed the Health Ombudsman of the conviction of Mr Sabo in the Wynnum Magistrates Court on 19 January 2015 on fraud charges relating to Mr Sabo's attendance at a medical practice, advising he was on holidays from the USA and presenting a letter purportedly from a doctor in the USA in order to obtain prescription medication. Mr Sabo provided a false name and address at the time of the consultation. Mr Sabo was released upon entering into a recognisance in the sum of $1,200 conditional upon him being of good behaviour for a period of 12 months, with no conviction recorded. A copy of the court brief was provided.

[12] The letter noted that both the Health Ombudsman and Australian Health Practitioner Regulation Agency (AHPRA) should be made aware of the details. A notification was given to AHPRA by the Health Ombudsman under cover of a letter dated 2 March 2015.

[13] Further notifications were received by the Health Ombudsman on 1 May 2015 and 5 May 2015. AHPRA were made aware by the Health Ombudsman of these notifications.

[14] The notifications resulted in action being taken by the Health Ombudsman, AHPRA and UnitingCare Health.

[15] By letter dated 29 April 2015, Mr Sabo was notified that the matter was being investigated by St Andrews' (on behalf of UnitingCare Health) and for the duration of the investigation he would be suspended on full pay from 29 April 2015. Mr Sabo's employment was terminated effective from 14 May 2015.

[16] On 14 May 2015, the Queensland Notification Committee of the Board decided to investigate the matter and advised Mr Sabo that he was required to undergo a health assessment on 15 July 2015. The practitioner failed to attend that assessment and failed to provide any information in relation to the health matter. Correspondence sent to his nominated address was returned. Attempts to contact Mr Sabo by telephone, post and email were to no avail. Mr Sabo only re-engaged with AHPRA by making his application for renewal of his registration and Mr Sabo was requested to provide further information.

[17] Against this background, the Committee decided to take immediate action and suspend Mr Sabo's registration on 1 October 2015. On 11 November 2015, Mr Sabo attended his assessment with Dr Prior. Dr Prior provided a report to the Board dated 20 November 2015. Dr Prior concluded that Mr Sabo was not fit to practice as a registered nurse because he had a substance use disorder which is currently untreated.

[18] On 28 July 2016, following consideration of the reports of Dr Prior, the Board formed a reasonable belief that Mr Sabo had a health impairment and on 25 August 2016 the Board imposed a condition on the registration of Mr Sabo that he must not practise as a registered nurse. On 24 October 2016, Mr Sabo failed to renew his registration.

[19] On 10 January 2017, Mr Sabo commenced receiving treatment from the Bayside Community Addiction and Mental health Service and became part of the Queensland Opioid Treatment Program. Mr Sabo continued on that program at least until 8 January 2018.

[20] The investigation by the Office of the Health Ombudsman was commenced on 12 May 2015. During the course of that investigation, information was received of the further convictions for criminal offences in the Brisbane Magistrates Court on 4 December 2015, on his own pleas of guilty, of one count of stealing, one count of forgery, one count of uttering a forged document and one count of fraud. Each of the counts arose from the stealing of a prescription pad from St Andrews' Hospital issued in the name of a particular medical practitioner, prescribing false prescriptions from that pad in the period between November 2014 and April 2015 on multiple occasions and obtaining prescription medications as a result. Mr Sabo was convicted of each charge and sentenced to probation for a period of two years and ordered to perform 150 hours of community service and the recognisance imposed on 19 January 2015 was revoked and Mr Sabo was ordered to pay $1,200. No convictions were recorded. A copy of the court brief was provided to the Ombudsman.

[21] The investigation of the Office of the Health Ombudsman resulted in the director of proceedings referring the matter to the Tribunal.

[22] By reference to the six charges the subject of the referral, the conduct of Mr Sabo can be summarised as:

• (a) Charge 1 - On 19 January 2015, Mr Sabo was convicted on his own pleas in the Wynnum Magistrates Court of the criminal offences referred to above.

• (b) Charge 2 - Mr Sabo failed to notify the Board within seven days (or at all) of having been charged and within seven days (or at all) of having been convicted of the offences on 19 January 2015, as required by s 130 of the National Law.

• (c) Charge 3 - On 31 May 2015, in completing his online application for renewal of his registration as a registered nurse, Mr Sabo stated that there had been no change in his criminal history, despite the convictions on 19 January 2015 and of the fact of the laying of further criminal charges on 27 April 2015.

• (d) Charge 5 - On 4 December 2015, Mr Sabo was convicted on his own pleas in the Brisbane Magistrates Court of the criminal offences referred to above.

• (e) Charge 6 - Mr Sabo failed to notify within seven days (or at all) of having been charged with criminal offences on 29 April 2015, 4 June 2015 and 21 June 2015; the offences with which he was charged related to the convictions on 4 December 2015, the subject of Charge 4.

• (f) Charge 7 - On 11 September 2016, Mr Sabo in attending at a medical appointment with a general practitioner gave false information in relation to his personal details in an attempt to procure a medical prescription for Schedule 4 and Schedule 8 restricted drugs. The general practitioner recognised Mr Sabo and, in the absence of the provision by Mr Sabo of photo identification, declined to provide the medical prescription.

[23] Charge 4 in the initial referral was discontinued on the filing of the amended referral.

[24] The primary offending conduct of Mr Sabo is contained in charges 1, 5 and 7. Whilst Mr Sabo was not criminally charged with respect to the conduct the subject of charge 7, that conduct was not dissimilar to the conduct that resulted in the criminal charges and conviction in charge 1. The conduct the subject of charge 5 involved multiple occasions over a 5 month period of the presentation of a false prescription in order to obtain Schedule 4 and Schedule 8 drugs. The conduct in relation to all three charges involved dishonesty and, in the case of charges 1 and 5, involved theft and forgery and fraud.

[25] The Health Ombudsman submitted that the conduct the subject of the three charges, charges 1, 5 and 7 amounted to professional misconduct. The Health Ombudsman in making that submission referred to previous decisions of the Tribunal involving theft and forgery.[1] In Antley, the practitioner who was a registered nurse had stolen at least two blank authority prescriptions from her employer, forged two prescriptions to obtain a Schedule 8 drug and was convicted of criminal offences of fraud and stealing. The prescription medication had been obtained to self-manage pain from a diagnosed condition. In finding that the conduct constituted professional misconduct, the Tribunal noted that conduct of the kind is "totally unacceptable for any practising nurse, and it plainly satisfies those portions of the definition of professional misconduct with which she has been charged".[2]

[26] The Tribunal is satisfied that the conduct the subject of charges 1, 5 and 7 satisfies the definition of professional misconduct.

[27] With respect to the conduct the subject of charges 2, 3 and 6, which relate to Mr Sabo having failed to notify the Board and having provided false information to the Board, it is appropriately regarded as unprofessional conduct. The Health Ombudsman submitted that the provision of incorrect information in completing an online renewal application, as particularised in charge 3 of the referral, should be considered as more serious than simply failing to notify under the National Law. The Health Ombudsman referred to previous authorities in support of a finding of unprofessional conduct in relation to that conduct.[3]

[28] Whilst the Tribunal accepts that such conduct amounts to unprofessional conduct, the approach of the Tribunal has often been to regard such failures, where they occur with more serious primary offending, to be treated as secondary to the primary misconduct and as an aggravation of the totality of the conduct to be considered by the Tribunal.

[29] Given the Tribunal's view as to the primary misconduct, the totality of the conduct as detailed in charges 1, 2, 3, 5, 6 and 7 amounts to professional misconduct.

[30] The Tribunal, having found that Mr Sabo has behaved in a way that constitutes professional misconduct, must decide the appropriate sanction to be imposed.[4]

[31] Noting the limitations as to the orders which the Tribunal may impose as Mr Sabo is no longer a registered practitioner, the Health Ombudsman submitted that the appropriate sanction was for Mr Sabo to be reprimanded and to be subject to a disqualification period of 2 years before being entitled to apply for re-registration.

[32] In Antley, Ms Antley as a registered nurse had stolen at least two blank authority prescriptions from her employer, forged two prescriptions to obtain endone, was convicted of criminal offences of fraud and stealing and failed to disclose those convictions to the Board. Ms Antley was dismissed from her place of employment and the Board took immediate action by imposing conditions upon her registration. Ms Antley subsequently surrendered her registration.

[33] In considering the appropriate sanction, the Tribunal noted that due to Ms Antley's voluntary cancellation of registration, she had already been deprived of registration for more than 7 months. However, the Tribunal commented that "general deterrence of such conduct is unlikely to occur unless a loss of registration for at least 12 to 18 months is known to be a probable consequence".[5]

[34] The Tribunal reprimanded Ms Antley and disqualified her from applying for re-registration for 9 months from the date of the order. The Tribunal declined to make a costs order against Ms Antley.

[35] It was submitted by the Health Ombudsman that the conduct of Mr Sabo was more protracted in both period of time and number of instances, and more serious by way of repeated conduct and repeated criminal convictions. It was submitted that the sanction imposed in the matter of Antley serves as a useful starting point for conduct of this type.

[36] In Robertson, Ms Robertson was an enrolled nurse who stole an unknown number of blank prescriptions from a prescription pad at the hospital where she worked. Ms Robertson had forged a script and attempted to obtain Schedule 4 medication on one occasion. In that case, it was found that the practitioner was addicted to pain medication as a result of diagnosed medical conditions.

[37] The Tribunal considered that the practitioner's genuine medical problems, together with her recognition that she had a dependency problem and was conscientiously using the support services to address her problems, were mitigating factors and indicative that the practitioner had insight so as not to transgress again.

[38] The Tribunal reprimanded the practitioner and placed numerous conditions on her registration.

[39] As submitted by the Health Ombudsman, a significant distinguishing factor in Robertson was the finding by the Tribunal that the practitioner had sufficient insight not to transgress again. It was submitted by the Health Ombudsman that, "...the respondent's ongoing lengthy and deceptive conduct through the use of aliases, demonstrated lack of remorse and limited insight into his conduct, brings his professional judgment into question". Further, it was noted by the Health Ombudsman that there is inability to impose conditions on Mr Sabo's registration, as was ordered in Robertson.

[40] The Tribunal accepts that the conduct of Mr Sabo was protracted and involved multiple instances of the presentation of forged prescriptions. The matter is complicated by Mr Sabo's impairment of which there is evidence that, at least for a time, he sought to address. His impairment does not excuse his behaviour but does give context to his offending.

[41] The difficulty for the Tribunal, however, is that as a result of Mr Sabo's complete refusal to engage in the disciplinary proceedings, the Tribunal has before it no evidence as to the current status of Mr Sabo's impairment. Further, Mr Sabo's conduct through the referral proceedings gives rise to a concern as to his underlying character. There is evidence before the Tribunal of Mr Sabo's attempts to prevent the pursuit of the proceedings by avoiding service; his conduct at the very least caused delay and added to costs.

[42] His approach means that the Tribunal has no evidence before it as to any insight or remorse for his misconduct. Further, whilst Mr Sabo has not worked as a registered nurse since May 2015, his conduct through the investigation process by the Health Ombudsman and the Board again caused delays to that process.

[43] Mr Sabo chose not to renew his registration in October 2016. Disappointingly, Mr Sabo failed to engage in any rehabilitation to address his impairment until January 2017, some 21 months after his employment had been terminated.

[44] If Mr Sabo wishes at some subsequent time to reapply for registration, he will need to satisfy the Board of his fitness to practice as a registered nurse and importantly he will need to provide evidence, at the very least, that he has addressed his addiction.

[45] Given his total lack of engagement in the process, his uncooperative behaviour and the lack of any evidence of insight or remorse, the Tribunal considers that it is appropriate that he be disqualified for a period of 2 years from reapplying for registration. At that time, it will be a matter for the Board to determine his fitness for practice.

[46] The Health Ombudsman does not seek an order for costs.

[47] Accordingly, the orders the Tribunal makes are:

1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), Mr Sabo has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Mr Sabo is reprimanded.
3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), Mr Sabo is disqualified from applying for registration for a period of 2 years, from the date hereof.
4. There be no order as to costs.

[1] Health Ombudsman v Antley [2016] QCAT 472 (Antley); Nursing and Midwifery Board of Australia v Black [2015] VCAT 1232; Health Care Complaints Commission v Robertson [2011] NSWNMT 5 (Robertson).

[3] Nursing and Midwifery Board of Australia v Bartlett (Correction) (Review and Regulation) [2013] VCAT 2014.