[3] Mr Carroll has faced both criminal and disciplinary proceedings about the conduct involved in this matter. It occurred at a medical centre at which he worked as a nurse. The patient worked at a pharmacy attached to the centre. It was her first day working there. She had a pre-existing neck condition and, at the end of the working day, was experiencing strong pain and sought treatment. She had not been to the centre before. She had not met Mr Carroll before.

[4] Mr Carroll administered morphine to the patient, against the express direction of the treating doctor. The morphine he used was surplus after another patient had been administered the drug. Mr Carroll signed a medication record indicating that he had disposed of the surplus. In fact, he injected it into the complainant.

[5] Almost immediately after doing so, he raped[5] her. He stood on a stool next to the bed, exposed his penis, guided her head with his hand and inserted his penis in her mouth. Shortly after this he ejaculated into her mouth.

[6] Both the injection and the rape occurred behind a curtain drawn around the patient's bed.

[7] Mr Carroll then thanked her and gave her some tissues. She spat into the tissues, placed them into a vomit bag and went to the reception desk to discharge herself. She had intended to preserve the tissues as evidence of what had happened. While she was at reception, Mr Carroll took the vomit bag from her. At some point he wrote in her medical file that she had been exhibiting "odd" behaviour.

[8] That evening, the patient rang and then visited a police station to discuss what had happened. She was shocked and uncertain what course she should take. She did not make a formal complaint that night.

[9] The next day she confronted Mr Carroll. He downplayed what had happened. He also started to weave a version that presented the event as a sexual favour she gave him in exchange for the morphine he administered to her. Later that day the patient spoke to family and a work colleague and decided to make a formal complaint to police.

[10] About a week later, the patient called Mr Carroll. Their conversation was recorded by the police. He enquired after her health, told her he thought there was an element of romance in what took place and again pursued the version that he had asked her to "go down" on him as an exchange for the "dangerous favour" he did her. He asked her if she wanted him to pray for her, wished her luck for the future and thanked her for calling.

[11] A possible explanation for the bizarre nature of this conversation might be found in Mr Carroll's health status at the time. He has provided an opinion from a psychologist that he was then in a manic phase of Bipolar Disorder.

[12] It might also go some way to explain the brazen nature of his assault of a patient he had met only minutes earlier and in a room in which there were other patients and a doctor present at the time.

[13] Mr Carroll later pleaded guilty and was convicted of both rape and supply of a dangerous drug. He was sentenced to a term of 5 years imprisonment for the rape, and a lesser term for the other offence.

[14] However, he initially vigorously resisted the charges. At the committal proceedings prior to his trial, Mr Carroll instructed his lawyer to fully contest the matter. The patient was required to give evidence and was cross-examined about her account. Suggestions were put to her so as to invite the inference that she had consensually and willingly performed oral sex in exchange for morphine. The suggestion was entirely baseless and was expressly rejected by the patient. Mr Carroll now accepts that he knew there was no foundation for his attack on her credit.

[15] The patient was devastated by the offences and the ordeal of the subsequent legal proceedings. During the sentencing hearing, the judge referred to the patient's poignant victim impact statement and the distressing consequences for her, including the breakdown of her relationship and the impact on her emotional wellbeing.

[16] Mr Carroll's convictions for the indictable offences are sufficient basis for disciplinary action. Although he was not a registered nurse at the time of the convictions, he was when the offences occurred.[6]

[17] Mr Carroll's discreditable professional conduct extends beyond the conduct punished by his criminal sentence. Because he was a nurse, he had access to the drug used in the offence. He abused his professional position to secure and administer the drug. He did this against the express direction of a medical practitioner. Whatever he might have thought about the treatment of her pain, he was not authorised to and should not have second-guessed and contravened the direction of the treating medical practitioner. He also falsely recorded he had disposed of it. Each aspect of Mr Carroll's abuse of his position as a nurse is a serious matter warranting disciplinary action, even without considering his criminal offence.

[18] As for the rape, it hardly need be said that the sexual assault, in this case rape, of a patient by the nurse assigned to care for her is one of the most serious ethical breaches that might occur.[7] The trust and privilege inherent in a nurse patient relationship must be preserved by the nurse and the power differential must be recognised and managed. A nurse must protect vulnerable people from sexual exploitation and physical harm. In this case the nurse himself has sexually exploited and harmed the patient.

[19] Mr Carroll compounded this by abusing his position as a nurse to paint a negative picture of the patient, by making misleading notes in her records.

[20] This was followed by his sustained attempts to cast responsibility on her for his uninvited and criminal behaviour. It reflects poorly on his character that he actively maintained that stance into the committal proceedings, without regard for the impact this might have on his former patient.

[21] His offending conduct and his subsequent treatment of the patient in the criminal proceedings is both infamous conduct[8] and misconduct in a professional respect.[9] It is also conduct that is discreditable to the nursing profession.[10]

[22] Mr Carroll was in his early 40s when this event occurred. He had been a nurse for 5 years and 9 months with an unblemished working history. He has cooperated with the Board in these proceedings and has not required the patient to give evidence here. That is accepted as evidence that he now accepts responsibility. It may also be taken as an indication that, at this late stage, Mr Carroll is remorseful and has insight into the impact on his former patient of the offences and their aftermath. The Tribunal is concerned, though, that even as recently as March 2009 in a letter to the Queensland Nursing Council, Mr Carroll still maintained a version of events which cast some responsibility upon the patient.

[23] Mr Carroll has a history of mental illness. In 2000, a psychiatrist diagnosed him with Bi Polar Affective Disorder. It is not clear to the Tribunal whether this was disclosed to the Board when he sought registration in 2002. If it had been, it might be expected that his health status would have been monitored.

[24] Whether he disclosed his condition or not, the Board accepts that at the time of the offence Mr Carroll had ceased taking his prescribed medication and was under considerable personal stress. Mr Carroll's psychologist, Mr Stokes, who provided a report for the sentencing hearing, considered that Mr Carroll was in a manic phase and, in that state, would not have been able to see the full consequences of his behaviour.

[25] The Board does not concede that he was in a manic phase, but offers no contrary evidence. It may well not be in a position to do so, given the difficulty of making an assessment after the event, a point the Board raises against Mr Stokes' assessment. The Tribunal views cautiously Mr Stokes' assessment of Mr Carroll's state at the time of the offence.

[26] The Board argued the Tribunal should approach Mr Carroll's mental illness in the same way as the criminal courts deal with the part that intentional intoxication plays in a criminal offence. That is, a self induced condition does not mitigate the seriousness of the offence. If Mr Carroll was in a manic phase this was his own doing because he voluntarily ceased medication.

[27] Mr Carroll can be expected to have had some appreciation of the risks he was taking in ceasing his medication. Arguably, as a nurse, his understanding would have been greater than a patient with no medical knowledge. That said there is no indication in Mr Carroll's past that he is a man disposed to such extreme and abhorrent behaviour. Nor is there any evidence that sexual offending was a specific risk that Mr Carroll ran if he was not properly medicated.

[28] On the limited evidence before the Tribunal, it cannot entirely reject the submission that Mr Carroll's illness played some part in his offence. The Tribunal has taken that into account in determining what orders are appropriate. If the Tribunal was convinced his illness played no part at all, the Tribunal would cancel Mr Carroll's registration and order that he never be registered as a nurse again. As matters stand, the Tribunal accepts that a lesser sanction is called for because Mr Carroll's illness does go someway to explaining his conduct.

[29] There is some evidence of Mr Carroll's rehabilitation since his convictions. While in prison, he successfully completed a Sex Offender Treatment program and was compliant with the treatment prescribed by the Prison Mental Health Centre. When he was released to parole a year ago, he was stable and apparently insightful about the need for ongoing treatment. A recent report from his current psychologist, Ms Clarke, shows he has remained compliant with medication and other treatment. He has since completed a further corrective services program aimed at sexual offenders on parole.

[30] Mr Carroll has not asked the Tribunal to determine whether he is now fit to practice. The concept of fitness to practice is not confined to professional knowledge and skill.[11] It extends to questions of character. The evidence leaves this Tribunal unconvinced that Mr Carroll is fit to practice. He does provide some references, but not all the referees seem to be aware of the offences and most are from his family.

[31] Even adopting a generous view of his mental state at the time of the offences, there is no evidence he was unable to appreciate the consequences of his actions at the time he instructed his lawyer to contest the criminal charges. That resulted in the patient having to endure a baseless and unchivalrous challenge to her veracity and character. Even in his submission to the Queensland Nursing Council in March 2009, he characterised his conduct as solicitation of a sexual favour and attributed complicity to the patient.

[32] While there are some disputes between the parties about what view the Tribunal should take of the circumstances of Mr Carroll's conduct, they agreed on what orders the Tribunal should make.

[33] They jointly proposed that Mr Carroll should be precluded from applying to be registered as a nurse for a period of 8 years from the date of the order. Before he may apply there are further conditions he must meet. Firstly, he must undertake counselling with a psychiatrist or psychologist approved by the Board, until that practitioner reports that further counselling is unnecessary. Secondly he must complete further ethical training. Finally he must be assessed by an independent psychiatrist approved by the Board as fit to practice, with particular reference to the conduct the subject of these proceedings. Mr Carroll will have to bear the costs of meeting those conditions. They also agreed that he should pay the costs of the proceedings.

[34] The conditions Mr Carroll must fulfil prior to registration are not controversial. They directly address the risks that arise from Mr Carroll's conduct and are appropriate to protect the public and establish his fitness to return to practice.

[35] The preclusion period is very lengthy. Combined with the other pre-conditions to registration, the penalty is significant and may well result in Mr Carroll never returning to practice as a nurse. Being out of practice for such a lengthy time will mean that Mr Carroll will have to undergo further nursing education in order to demonstrate his professional competence. By then it will be almost 12 years since he worked as a nurse.

[36] Both parties have referred the Tribunal to two Queensland cases in which orders of this magnitude were imposed. Both are recent. One involved sexual offending many years earlier by a nurse against his two nieces over a 3 year period.[12] He was precluded from applying for 8 years, only 5 of which reflected the rape convictions. The remainder reflected his false statements in a bid to renew his registration.

[37] The other did not involve sexual offending or a patient, but was most serious criminal conduct. The nurse stole a substance from his workplace with the intention of scaring a woman with whom he had been in a relationship. They were in conflict about how to respond to her pregnancy. He injected her with a substance which had the potential to seriously harm her. He was precluded from reapplying for registration for 7 years.[13]

[38] The Tribunal is satisfied that the orders proposed by the parties provide an adequate preclusion period and appropriate pre-conditions to future registration. Nevertheless, in order to maintain public confidence in the profession and to protect the public interest, the Tribunal has ordered that certain conditions must be imposed on Mr Carroll's registration if he is successful in securing that when the 8 year preclusion period has expired.

[39] Under those conditions Mr Carroll will be prohibited from treating female patients. He will also be prohibited from working for a nursing agency, so as to ensure he has some continuity of oversight after such a lengthy period out of practice. He will be required to work under the supervision of a registered nurse approved by his employer. Mr Carroll must authorise his employer to report about his fitness to practice to the Board when requested by the Board to do so. Mr Carroll will not be able to apply to review the conditions for 3 years after they are imposed.

[3] These proceedings were commenced under the Nursing Act 1992 since repealed. The effect of the transitional provisions is these proceedings continue to be dealt with as if the Act had not been repealed: Health Practitioners (Professional Standards) Act 1999, s 405P(1); s 405P(5): definitions of existing QCAT proceeding and registration proceeding in relevant Act; s 405L: definitions of amending Act and repealed Health Practitioner Registration Act.

[5] Queensland Criminal Code, s 349(2)(c).

[6] Pharmacy Board of Queensland v Gordon [2010] QCAT 181, [11].

[7] See Nursing & Midwifery Board of Australia v Heather [2010] QCAT 423, [15] for a summary of the guiding principles relevant to nursing, in relation to sexual offending.

[8] Nursing Act 1992, s 104A(3)(c); Nursing & Midwifery Board of Australia v Heather [2010] QCAT 423, [22]-[23].

[9] Nursing Act 1992, s 104A(3)(d); Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, 507.

[10] Nursing Act 1992, s 104A(3)(e); Graham v Queensland Nursing Council [2009] QCA 280; Nursing & Midwifery Board of Australia v Heather [2010] QCAT 423, [26].

[11] In re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ.

[12] Nursing & Midwifery Board of Australia v FH [2010] QCAT 675.

[13] Queensland Nursing Council v Dodd [2010] QDC 220.