[1] The respondent was granted registration by the Nursing and Midwifery Board of Australia ('Board') on 3 July 1972 as a registered nurse ('RN').
[2] On 31 May 2024 the respondent failed to renew her registration and was no longer registered from 1 July 2024.
[3] At all times the respondent was a registered health practitioner for the purposes of the Health Ombudsman Act 2013 (Qld) ('HO Act') and s 5 of the Health Practitioner Regulation National Law (Queensland) ('National Law').
[4] Pursuant to s 21(2) of the HO Act, the Tribunal may deal with the applicant as if she was still a registered health practitioner.
[5] The Tribunal is satisfied that it has jurisdiction to proceed with the matter pursuant to sections 9(2)(a) and 10(1)(b) of the QCAT Act and sections 96(1)(a) and 107 of the HO Act.
[6] The Tribunal proceeds having regard to section 4(1) of the HO Act that the main principle for administering the Act is that the health and safety of the public are paramount. The applicant bears the onus of proof to the civil standard that is on the balance of probabilities with a degree of satisfaction varying according to the gravity of the facts to be proven; that is, the standard articulated in Briginshaw v Briginshaw[1938] HCA 34; (1983) 60 CLR 336.
[3]
[7] The respondent was convicted of two criminal offences (fraud - dishonestly obtain property from another by employee) and was convicted in the Brisbane Magistrates Court on 21 June 2024, the judgment being that the respondent be released upon entering into a recognisance in the sum of $1,500.00. The judgment conditioned that the respondent must be of good behaviour and appear for conviction and sentencing if called upon at any time within a period of six months. Two charges of stealing by clerks and servants were discontinued.
[8] It was alleged against the respondent that on 4 September 2023 she was working for Health Care Australia at the Royal Brisbane and Women's Hospital ('RBWH'). During her shift she was observed by another nurse taking a B. Braun infusion pump (worth approximately $5,000.00-$6,000.00) and placing it into her handbag. The respondent admitted to taking the pump stating that she was going to take it home to "show a friend how it works and then bring it back afterwards".
[9] Upon opening her handbag other items were revealed including a kidney dish, a blood sample bag, insulin syringes, a crepe bandage, plastic vials of diluting solution, and two glass vials of penicillin. These were seized by security and the respondent was sent home.
[10] A search of the respondent's address by police located a B. Braun power lead on the couch. The respondent stated that it was "her daughter's" and was for "her high sugar".
[11] The respondent stated that she intended to return the B. Braun infusion pump and the lead to the hospital when she was finished using it. She said she did not ask for permission to borrow the B. Braun infusion pump because she thought she would not have been given permission. The other items were not able to be returned to the hospital.
[12] The sentence was imposed on the basis that the respondent was borrowing the hospital equipment in order to assist a friend. The Magistrate accepted this basis at sentence and also took into account the respondent's unblemished character, positive personal references, and the fact she was 72 years old at sentence and had never been in trouble before.
[13] Text messages between the respondent and her friend tended to support her version of events that she was borrowing equipment to assist her friend. The respondent's friend has advised that she and the respondent are no longer friends.
[14] The Tribunal notes that the respondent has not participated in the proceedings. The Tribunal also accepts that whilst the intentions of the respondent may have been to assist her friend, the respondent was clearly aware that she was not permitted to remove the items from the hospital and that her conduct was wrong.
[15] The Tribunal is satisfied that the conduct is properly characterised as professional misconduct. The Tribunal accepts this characterisation on the basis of the first limb of the definition, being conduct that is substantially below the standard which might reasonably be expected of a health practitioner of an equivalent level of training or experience.
[16] The Tribunal is not satisfied that the conduct meets the test in the third limb of the definition being conduct that is inconsistent with being a fit and proper person to hold registration in the profession.
[17] The Tribunal has had regard to the meaning of "substantially below" as noted in Pharmacy Board of Australia v The Registrant[1] where it states "the registrant's conduct needs to be shown to be, to a high degree, below the standards expected of a registrant of equivalent training and experience".
[18] The Tribunal notes the meaning of substantial as noted in Health Ombudsman v Niem Quoc Tang.[2] The Tribunal has also had regard to the principles sets out in Medical Board of Australia v Jansz.[3] On this basis the Tribunal is satisfied that the conduct is serious and amounts to professional misconduct.
[19] The applicant notes the respondent is no longer registered as a nurse and it is unclear if she intends to return to practising as a nurse.
[20] The applicant submitted that the Tribunal should have regard to the decision in Health Ombudsman v Franklin[2021] QCAT 186 where the Tribunal said:
[4]
In the circumstances of this case, where the Tribunal is no longer practising as a podiatrist and has professed an intention not to return to the profession, the principal purposes of sanction are to protect public confidence in the profession by denouncing the Respondent's conduct and deterring other members of the health profession that might be minded to act in a similar way...
[5]
[21] Insight and remorse will always be factors which the Tribunal must have regard to in determining sanction. In Medical Board of Australia v Jansz,[4] the Tribunal noted that insight is an important consideration as "the likelihood of recidivism or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination". Put another way, does the respondent truly understand the error of her ways.
[22] The Tribunal notes that whilst there appears to be some remorse having regard to the respondent's plea of guilty in the Magistrates Court, the level of remorse is hard to gauge because the respondent has not participated in the proceedings and there is no available evidence on the issue.
[23] The Tribunal notes the submission made by the applicant that "whilst it appears the respondent is accepting of the outcome of these proceedings, the Tribunal cannot be satisfied that future risk is entirely mitigated".
[24] The Tribunal has taken into account the issue of deterrence both personal and general. The Tribunal accepts in this case general deterrence is important to denounce the respondent's conduct and demonstrate to other health practitioners that this type of conduct will not be tolerated.
[25] The Tribunal is assisted by the comparative cases provided by the applicant, particularly Health Ombudsman v Haseldine[2022] QCAT 123. In that case the RN pleaded guilty to one count of stealing and was sentenced to a good behaviour bond of 12 months with no conviction recorded. The sanction imposed was one of reprimand.
[26] Equally, in the decision of Health Ombudsman v Jamison[2017] QCAT 172, a RN had stolen three boxes of antibiotics (for her 25-year-old son) and was convicted and placed on a good behaviour bond for two years with a recognisance of $2,000.00. It was noted in that case that the practitioner demonstrated appropriate remorse and cooperation; she had allowed her registration to lapse and was working as an unregistered health practitioner with no intention of applying for registration. In that case the respondent was reprimanded.
[27] In all of the circumstances the Tribunal is satisfied that the conduct was substantially below the standard which might reasonably be expected of a registered health practitioner of an equivalent level of training or experience.
[6]
[28] The Tribunal notes that a reprimand is not a trivial penalty as it has the potential for serious adverse implications for a professional person and that to adequately meet the expectations of public denunciation a reprimand is appropriate in the circumstances. Accordingly the Tribunal makes the following orders:
Pursuant to s 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct as defined by subparagraph (a) of the definition of that term in s 5 of the National Law.
Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.