Health Ombudsman v Sharman [2020] QCAT 224

Health Care Complaints Commission v Townsend [2014] NSWCATOD 65

Health Ombudsman v Field [2019] QCAT 243

Health Ombudsman v Hardy [2018] QCAT 416

Medical Board of Australia v Kioussis [2019] VCAT 1961

Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340

Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99

Nursing and Midwifery Board of Australia v Morley [2014] SAHPT 17

Pharmacy Board of Australia v Arulogun [2013] QCAT 685

Psychology Board of Australia v Wakelin [2014] QCAT 516

• [1] This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act, I am sitting with assessors Ms L Dyer, Mr S Lewis and Mrs F K Petty.[1]
• [2] The respondent is a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that the respondent engaged in professional misconduct, in that, while registered, she failed to comply with conditions on her registration, and submitted forged statutory declarations to the Board, and in unprofessional conduct, in that she failed to notify the Nursing and Midwifery Board of relevant events, namely that she was charged with and convicted of a number of offences.
• [3] The parties have provided the Tribunal with an agreed statement of facts, and an agreed bundle of documents. The respondent, who has not been legally represented in this proceeding, provided a response to the referral in which she admitted the allegations, and that the conduct amounted to professional misconduct. She has written to the Tribunal, and provided the Tribunal will a letter of support from a psychologist who has been treating her since 2019, but did not provide written submissions as such to the Tribunal. She appeared by telephone at the hearing and made oral submissions, and the applicant made oral supplementary submissions. She later provided further information in writing.

• [4] The following facts are taken from the agreed statement of facts, from documents in the agreed bundle or from other material before the Tribunal. The respondent was born in 1951 and is now 68. She was first registered as a nurse in 1981. At the time of the relevant conduct she worked at a provincial hospital, where she had worked since 1998. In November 2011 the Board required the respondent to undergo a health assessment by a psychiatrist. The psychiatrist advised that the respondent was not fit for work, due to alcohol dependence, but that she would be fit to do so after a period of sobriety of six months. As a result, the Board imposed conditions on her registration, involving supervision, treatment, counselling and testing requirements. These conditions were amended from time to time.
• [5] On 15 June 2012 the Board received an undertaking from the respondent not to practice. Following advice from treating practitioners, the undertaking was revoked on 22 August 2012. In November 2012 however the Board was advised by the hospital that the respondent's performance was unsatisfactory, and her treating psychiatrist expressed concern about her drinking.
• [6] On 7 December 2012 she was charged with the offence of serious assault of a public officer (biting an ambulance paramedic on the hand). On 25 December 2012 she was charged with obstructing police (attempting to push past police when they had detained her for the purpose of investigating a domestic violence incident). On 14 February 2013 the respondent pleaded guilty to the first charge in the Magistrates Court, and was fined. On 28 March 2013 the respondent pleaded guilty to the second charge in the Magistrates Court, and was fined. She appeared to be affected by alcohol when each of these offences was committed.
• [7] The respondent was required by the National Law s 130 to report both the fact of being charged and the fact of being convicted of each of these offences to the National Board, but the respondent failed to do so. By email on 1 October 2016 the respondent advised the applicant that she did not report the charges and convictions as she did not know that she was required to do so.
• [8] On 9 June 2013 a neuropsychologist reported that testing the respondent demonstrated problems with cognitive performance other than within the verbal domain, consistent with long standing alcohol dependence, which may compromise her performance within the workplace. He recommended further testing after a longer period of abstinence from alcohol, and that in the meantime her work be closely monitored by a qualified supervisor. On 5 June 2014 the Board amended the conditions of the registration of the respondent, to require that there be such supervision, with reports to be provided to the Board. There is no material to suggest that this condition was not complied with, or to show that there was any further neuropsychological testing.
• [9] Between July and November 2014, the respondent failed to provide urine samples in accordance with the Board's conditions on 26 occasions, and failed to meet deadlines for the provision of reports by her GP and psychiatrist. On four occasions she submitted statutory declarations to the Board signed by her, and purportedly witnessed by a particular person at the hospital, who did not witness the signatures or sign the declarations, and whose signatures as witness were forged by the respondent.
• [10] In April 2015 the Board identified further failures to comply with conditions in relation to the provision of reports, and in relation to blood and urine testing. On 1 May 2015 the Board suspended the registration of the respondent, on the basis that she posed a serious risk to persons. This was based on her significant non-compliance with testing requirements, leading to the possibility of undetected drug or alcohol abuse, the lack of information showing her fitness to practice and confirming her abstinence, the provision of the forged statutory declarations and the failure to comply with the conditions on her registration. The registration of the respondent has remained suspended ever since.
• [11] Overall the respondent failed to attend for urine testing on 80 occasions between 28 May 2014 and 19 March 2015, failed to attend for blood tests on 26 occasions between August 2012 and January 2015, failed to arrange for reports to be provided by her treating GP, psychiatrist and psychologist in the ten months prior to her suspension, and did not provide reports from her GP in 2013 or earlier in 2014.

• [12] The applicant advanced its case on the basis of three allegations:

Allegation 1: Failure to notify the Board of the charges and convictions.

Allegation 2: Failure to comply with conditions imposed on her registration.

Allegation 3: Submitting forged statutory declarations to the Board.

• [13] As to the first allegation, this is a requirement under the National law s 130. The definition of unprofessional conduct expressly includes a contravention by the practitioner of the National Law, whether or not there is a prosecution. The failure to notify was admitted, and that failure is therefore by definition unprofessional conduct. In the case of the second allegation, the conditions were imposed to ensure that the respondent was remaining sober, so as to avoid the risk of harm to patients if she was affected by alcohol at work. They followed advice that the respondent was apparently drinking, and that she was showing signs of being affected at work. It was a matter for the Board to assess the reports from practitioners, and the results of testing, and to decide if the conditions were no longer necessary, and for the respondent not to cooperate in these matters left the Board unsure whether the risk had materialised. In Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340 the Tribunal said at [69]:

A failure to comply with a condition on registration is a very serious matter as it suggests the practitioner is not willing to observe the law and act consistently with the requirements of the relevant registration body. It is not open for a professional person to decide which conditions they chose to comply with or to disregard restrictions which have been placed on their registration.[2]

• [14] With regard to the third allegation, it is an important obligation on practitioners to be honest in dealings with the Board, because the Board should be able to rely on information provided by practitioners in performing its functions. Although it is not alleged that the content of the statutory declarations provided by the respondent was inaccurate, fabricating the signature of a purported witness suggests that the respondent was not treating the process with appropriate seriousness, which casts doubt on their reliability in other respects.
• [15] There are also cases where dishonesty in providing information to a regulatory body has been regarded seriously, either as relevant conduct in itself, or as a factor touching on the seriousness of the substantive conduct.[3] This was not one instance of dishonesty, and that must give rise to concern about the respondent's character. As the applicant pointed out, the conduct of the respondent breached statements in the Code of Professional Conduct for Nurses in Australia published by the Board.
• [16] The applicant's position was that the matters covered by allegation 1 amounted to unprofessional conduct, and the matters covered by allegations 2 and 3 amounted to professional misconduct. The applicant sought that the respondent be reprimanded, and that her registration be cancelled, but did not seek any period of disqualification from registration. The applicant pointed out that the report of the psychologist was of limited assistance in assessing the respondent's fitness to practice, and that, unless the respondent's registration were cancelled, the respondent would be entitled to return to practice without conditions, and without providing better evidence of fitness to practice.

• [17] In March this year the respondent wrote to the Tribunal seeking a temporary postponement of the proceeding, to give her time to consider what to do. She claimed that she had been sober for many years, by following the programme of Alcoholics Anonymous. She had intended to surrender her registration, but advised that she missed the nursing career, and was considering seeking to resume it. In oral submissions, she did not dispute the factual basis of the allegations, or advance any submissions about what decision should be made about the characterisation of the conduct, but sought an outcome which would give her closure for the past difficult period of her life, and leave open the possibility of her resuming a nursing career in the future, although not in a hospital setting. She said she was now a lot stronger than she was ten years ago, when she went through a very difficult time, and was committed to her recovery, so there was no chance of her relapsing.
• [18] The respondent sent the Tribunal a letter of support from a psychologist who treated the respondent in 2019, to deal with issues related to childhood trauma and a personal loss. Her alcohol use disorder was assessed as being in sustained remission, and she was said to demonstrate insight into her past behaviour, and acceptance of responsibility, although the detail of the relevant past behaviour was not identified. She reported being sober for six years, and attending Alcoholics Anonymous meeting weekly, and said she was prepared to engage in testing and otherwise do what is required to demonstrate her suitability for registration.
• [19] The respondent explained that she relapsed into drinking in about 2010 during a difficult and messy divorce settlement, and then a disastrous relationship with a may who treated her very badly, and because she stopped going to AA meetings at that time, which she sees as the main cause. She said she had been sober for ten years before this. This shows how guarding against alcoholism requires constant vigilance, and I expect the respondent has learned from it.
• [20] The Tribunal is concerned about the level of insight the respondent has, particularly as to the risk to the public from her working while being adversely affected by alcohol, although that is a matter going to her then impairment, rather than the disciplinary matters before the Tribunal. She said that at one stage she faced increased difficulty in attending a testing centre to comply with the conditions after she lost her driver licence, and did concede that in hindsight she should have handled things better when confronted with this difficulty. She conceded that at the time she was feeling some resentment towards AHPRA because of the burden of complying with the conditions. She claimed that she never returned a positive test, and in that context saw the continued conditions as harsh.

• [21] The conduct in allegation 1 is unprofessional conduct by definition. In the case of the breaches of conditions, the breaches were so numerous and extended over such a long period that I consider that the conduct in allegation 2 is properly characterised as professional misconduct, being unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[4] Because of the serious nature of the conduct in allegation 3, and the importance of honesty in dealing with the Board, it is also properly characterised as professional misconduct. The issue then is what sanction is appropriate.

• [22] The applicant referred to a number of earlier decisions of Tribunals. In Medical Board of Australia v Kioussis [2019] VCAT 1961 the practitioner failed to comply with conditions requiring him to undertake further education in various areas of practice management, and had deficiencies in his record keeping and report management. These deficiencies extended to a period of years, and were regarded by the Tribunal as clearly warranting cancellation of his registration, particularly because of the need for specific and general deterrence, and to maintain appropriate standards in the profession. The practitioner's registration had already been suspended for about six months, and the Tribunal was unable to be confident that he would be fit to resume practice at the end of a period of suspension, and left his fitness to the assessment of the Board when he again applied for registration.
• [23] In Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99 the practitioner breached over a period of time conditions requiring her to advise changes in her employment, and for her employer to provide reports, to arrange reports from her GP and psychiatrist, and to attend drug testing. Eventually the Board suspended her registration. The conduct was characterised as professional misconduct, but there was good evidence before the Tribunal that the practitioner was then fit to practice, and the Tribunal reprimanded her, but imposed no other sanction, noting that her registration had already been suspended for over two years.
• [24] In Health Ombudsman v Hardy [2018] QCAT 416 the practitioner had been convicted of stealing a prescription pad and presenting fraudulent prescriptions to obtain drugs. She had also failed to notify the Board of the conditions. The practitioner had voluntarily ceased practice for almost four years, and there was evidence of a health assessment that she was fit to return to practice without restriction, and had developed insight to manage her health issues properly. She was reprimanded, but no suspension or disqualification was imposed.
• [25] The applicant submitted that INZ and Hardy could be distinguished on the basis that in each case there was good evidence before the Tribunal that the practitioner was then fit to practice, whereas that was not the case here.
• [26] The Tribunal is also aware of other decisions where the registration of a practitioner was cancelled.[5] In Nursing and Midwifery Board of Australia v Morley [2014] SAHPT 17 a nurse had obtained dishonestly about $1,000 from a vulnerable patient, and had been convicted of defrauding Centrelink of about $11,000, which had not been reported to the Board when applying to renew her registration. Because of the pattern of dishonesty the Tribunal cancelled her registration, and fixed a preclusion period of about three years from the date of the order, following the suspension of her registration for about two years.
• [27] In Health Care Complaints Commission v Townsend [2014] NSWCATOD 65, an elderly GP who had persistently failed to comply with a condition imposed on his registration that he undertake a certain course had his registration cancelled because of this. That was a case where the practitioner persisted at the Tribunal hearing in submitting that the course was unnecessary and inappropriate for him.[6] The cancellation appears to have been imposed in order to enforce compliance with conditions lawfully placed on his registration: [36], [48]. A disqualification period of one year was imposed: [49].
• [28] In Health Care Complaints Commission v Caken [2018] NSWCATOD 5 the practitioner had a drug problem, as a result of which he had had conditions placed on his registration. The Tribunal found that he had breached the conditions, been dishonest in dealings with the Medical Council, had not been frank with his treating practitioners and had not carried out relevant therapies, and that this showed a lack of commitment to dealing with his problems. The Tribunal regarded this conduct as very serious [185] and cancelled his registration: [186]. A preclusion period of three years from the suspension of his registration was imposed.

• [29] In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant.
• [30] In order to cancel the respondent's registration, it is necessary for the Tribunal to decide that the respondent is not a fit and proper person to be registered as a nurse.[7] That is to be decided as at the date of hearing.[8] The important distinction between suspension and cancellation of registration is that, in the latter case, it is necessary for the respondent on seeking registration to demonstrate that she is then a fit and proper person to be registered.[9] A number of matters relevant to such a finding were identified in Health Ombudsman v Field [2019] QCAT 243 at [36].[10] In this case, the persistence in breaching conditions involved an element of defiance of the Board's authority, which, coupled with dishonesty in dealing with the Board,[11] suggest a defect in character rather than an error of judgment. These were not isolated incidents.
• [31] The material shows that, as at May 2015, the respondent was not a fit and proper person to be registered as a health practitioner. Since then the positive material has been the respondent's cooperation with the applicant and in this proceeding, and the report of the psychologist, but there is no other material to show positively that the respondent is now fit to practice. The psychologist, although supportive, was not treating the respondent for any of the matters concerned with her impairment, or to address the conduct the subject of this proceeding, and was evidently relying largely on the self-reporting of the respondent. There is no up to date health assessment by a psychiatrist. The respondent said that, as at March 2020, she had been operating a Psychotherapy business,[12] which does not require registration, and there is no independent material as to her performance in that provision of a health service. In those circumstances, it remains appropriate to find that the respondent is still now not a fit and proper person to be registered as a nurse. Accordingly, it is appropriate to cancel her registration.
• [32] To some extent this finding relies on a presumption of continuance, and I acknowledge that the respondent's registration has been suspended for a long time. Bearing this in mind, it is not appropriate to impose any period during which the respondent is disqualified from applying for registration. If she can assemble material to satisfy the Board that she is, at the time of the application, again fit to be registered as a nurse, there is no reason why she should not be registered. She has been away from the profession for five years, which is ample time to satisfy the requirements of general deterrence and maintenance of public confidence in the profession; but because of the serious nature of the relevant conduct, it is appropriate also for the Tribunal to reprimand her.
• [33] Accordingly, the decision of the Tribunal is as follows:
  1. The Tribunal decides that the conduct of the respondent, in respect of Allegation 1, amounted to unprofessional conduct.
  2. The Tribunal decides that the conduct of the respondent, in respect of Allegations 2 and 3, amounted to professional misconduct.
  3. The Tribunal reprimands the respondent.
  4. The registration of the respondent is cancelled.
  5. The parties bear their own costs of the proceeding.

[1] Health Ombudsman Act 2013 s 126; see s 127 for their function.

[2] See also Health Care Complaints Commission v Townsend [2014] NSWCATOD 65 at [33]; Medical Board of Australia v Duggirala [2015] QCAT 557 at [6], [7]; Medical Board of Australia v Kioussis [2019] VCAT 1961 at [95].

[3] Psychology Board of Australia v Wakelin [2014] QCAT 516, at [21], [27], in a case where the practitioner had provided false denials to investigators. At [25] the Hon J B Thomas QC suggested that this dishonesty merited a suspension of registration for 18 months. See also Medical Board of Australia v Putha [2014] QCAT 159 (false information on application for registration); HCCC v Picones [2018] NSWCATOD 56 at [103], [105].

[4] Failure to comply with conditions has been characterized as professional misconduct in other matters: Pharmacy Board of Australia v Arulogun [2013] QCAT 685, where the conditions were imposed after the practitioner was charged with drug offences, the conviction of which was also relevant conduct. See also Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340 at [69]; Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99 at [104], [107].

[5] See for example Nursing and Midwifery Board of Australia v Fisher (supra at [13]) where the practitioner's registration was cancelled for failing to comply with conditions, but no period of disqualification was imposed.

[6] The practitioner was approaching retirement, only working part time and seeing only existing patients, mostly elderly. He also lacked computer skills, and the course was on-line only.

[7] Medical Board of Australia v Wong [2015] QCAT 439 at [84]; Medical Board of Australia v Duck [2017] WASAT 28 at [33], [34]; Medical Board of Australia v Alkazali [2017] VCAT 286 at [74].

[8] Medical Board of Australia v Cukier [2017] VCAT 109; Health Ombudsman v Field [2019] QCAT 243 at [36].

[9] Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21]. Uncertainly as to what may happen in the future may support a decision to cancel registration.

[10] Referencing McBride v Walton [1994] NSWCA 199 at [34].

[11] Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [105].

[12] Letter of the respondent to the Tribunal 24 March 2020.