Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241

[1] Phillip Rohan Marcus Dibbs formerly held registration as both a registered nurse and a registered midwife under the Health Practitioner Regulation National Law. He was first registered as a registered nurse in September 1988 and as a midwife in December 1994. On 30 March 2012 Mr Dibbs voluntarily surrendered his registration to the Nursing and Midwifery Board of Australia, which surrender was accepted by the Board. For reasons which will become plain, he has not been registered since.

[2] On 17 April 2014 the Nursing and Midwifery Board of Australia referred disciplinary proceedings to the Tribunal pursuant to section 193 of the National Law alleging that Mr Dibbs had engaged in conduct which constituted professional misconduct as defined by section 5 of the National Law; particularly that it was conduct of Mr Dibbs, whether occurring in connection with the practice of his profession or not, that is inconsistent with him being a fit and proper person to hold registration in the nursing and midwifery professions.

[3] The conduct which I am about to outline clearly satisfies that definition of professional misconduct.

[4] On 6 December 2012 Mr Dibbs was convicted on his own plea of guilty of one count of maintaining an unlawful relationship with a child under the age of 16, six counts of indecent treatment of a child under 16; three counts of rape; one count of sexual assault; one count of sexual assault involving contact between the genitalia and/or anus and the mouth; and one count of use of a carriage service to transmit and make available, publish, distribute or promote child pornography material.

[5] He was sentenced on that day by his Honour Judge Durward SC in the District Court in Townsville. Before me is the verdict and judgment record setting out the convictions and the sentences imposed by the Court on that occasion. Pursuant to section 93 of the Evidence Act 1977 (Qld), that verdict and judgment record is proof of the conviction for the offences and that Mr Dibbs performed the acts which constitute the elements of those offences, and possessed any state of mind necessary as an element of the offence.

[6] In sentencing Mr Dibbs for those offences, which appear from the sentencing remarks which have been tendered or exhibited to an affidavit of Stephanie Jane Gallagher, filed on 25 September 2014, in a redacted form to have related primarily to one complainant and to a lesser extent to another complainant, his Honour described Mr Dibbs' offending as follows:

[8] His Honour then referred to further offending conduct, including the taking of photographs of the complainant while she was naked and described that as "degrading behaviour", particularly as Mr Dibbs then looked at the photographs for his sexual gratification. As his Honour observed, members of the community would be numbed by that sort of behaviour.

[9] His Honour then referred to the conduct which related to the count of use of a carriage service and described it as involving Mr Dibbs having posted photographs of young girls on an album site on the internet, but in a way in which persons who had a level of depravity as great as his own were able to access them. His Honour observed that Mr Dibbs had made full admissions of the offences and had cooperated with authorities. That was no doubt reflected in his guilty pleas to the offences.

[10] On the count of maintaining a relationship with a child, Mr Dibbs was convicted and sentenced to six years' imprisonment. His Honour fixed a parole eligibility date of 12 February 2014. I am informed by Ms Gallagher, who appears for the Board that inquiries as of yesterday disclosed that Mr Dibbs remains incarcerated, notwithstanding the passing of that parole eligibility date. On each of the other counts on the indictment Mr Dibbs was sentenced to shorter concurrent periods of imprisonment, each of which also had a parole eligibility date of 12 February 2014. It is apparent from the verdict and judgment record that Mr Dibbs had already served 292 days in pre-sentence custody in respect of the offences, which was declared to be time served under the sentences.

[11] As to the sentencing remarks of his Honour Judge Durward of 6 December 2012, exhibited to Ms Gallagher's affidavit, I note that the name of the proceeding identifies a Phillip Marcus Rowan Dibbs as opposed to Phillip Rohan Marcus Dibbs and the spelling of Rohan is different. However, given the sentencing remarks made by his Honour that day, when read together with the verdict and judgment record, which does refer to the Queen v Phillip Rohan Marcus Dibbs, Rohan spelt in the same way as in these proceedings, I am quite satisfied that the sentencing remarks relate to that conviction.

[12] The fact that Mr Dibbs' registration had been surrendered in March 2012 was no bar to the bringing of these proceedings by the Board. Section 138 of the National Law provides that proceedings may be taken under Part 8 of the National Law in relation to the person's behaviour while that person was registered as if the person were still registered under the Law. Section 196 of the National Law, which provides for the action which may be taken by a responsible tribunal, having found that disciplinary proceedings have been made out against a former registrant, include at section 196(4), that if the person does not hold registration under the Law, the Tribunal may decide disqualify the person from applying for registration as registered health practitioner for a specified period.

[13] In large part these proceedings centre upon what period the Tribunal ought impose as a preclusion period under section 196(4)(a) of the National Law.

[14] Mr Dibbs has not participated in these proceedings at all, and that is understandable given the circumstances in which he finds himself. In response to a hearing notice which was issued by the tribunal on 20 February 2015, Mr Dibbs responded on 12 March 2015 by stating that he was not contesting these proceedings and that he would not appear. He then asked that the tribunal make the appropriate decision.

[15] Not surprisingly, there is a limited number of cases which involve offending of a like kind which has led to disciplinary proceedings being taken against registrants. In a matter commenced in the former Nursing Tribunal in 2008 and concerning conduct which occurred in 2005, being the matter of Ringelstien, the registrant was convicted of having maintained an unlawful relationship of a sexual nature with a child under 16. It appears from the limited facts that are disclosed in the submissions that the relationship there was conducted over a shorter period than is the case here. Mr Dibbs' offending took place over the six-year period from July 2006 to February 2012. Like Mr Dibbs, Mr Ringelstein's registration had lapsed and he also did not contest the application brought by the then Board. The Tribunal ordered that Mr Ringelstein not be entitled to reapply for enrolment or apply for registration or authorisation to practice as a nurse until a period of 15 years had elapsed and he completed a course of counselling with a psychiatrist or psychologist to be approved by the Council, which established that he did not pose a risk to patients. Unfortunately, the full reasons of the Nursing Tribunal are unavailable.

[16] In Nursing and Midwifery Board of Australia v FH[1], the practitioner had been convicted in Victoria of three counts of indecent assault and one count of rape. He had been sentenced to a total effective term of imprisonment of four years and eight months, of which he was required to serve a minimum of two years. That practitioner's professional misconduct was somewhat compounded by the fact that he had failed to disclose his pending sentencing hearing regarding his offending when he applied for registration in June 2009 in Queensland. His offending had occurred over a three-year period between 1989 and 1992, against his two nieces who were then young adults. His offending, which, by the time he was dealt with by the court, was somewhat historic, was described as being "opportunistic" and "occurring against a backdrop of strained marital relations due to work and family commitments". The Tribunal observed that there, as here, the victims of the offending conduct of the practitioner were not his patients. The Tribunal ordered that the practitioner be prevented from applying for registration for a period of eight years and that any future application would require the practitioner to provide a psychiatric assessment of his fitness to practice.

[17] Those conditions relating to future practice were imposed under legislation which then applied to those registrants, which is not mirrored in the National Law. In Nursing and Midwifery Board of Australia v Fankhauser,[2] the Tribunal determined that it was unable under the National Law to impose conditions upon future applications for registration under the National Law. Fankhauser has since been followed in other decisions of the Tribunal.[3]

[18] The nature of proceedings such as these is not to punish, or further punish, Mr Dibbs for his criminal conduct. Their purpose is protective. They are intended, through the sanction imposed, to protect the public, uphold the standards of the profession and maintain the public's confidence in the profession. Through his guilty plea and his submitting to whatever was considered to be an appropriate sanction by this Tribunal, Mr Dibbs has demonstrated some level of insight into his offending conduct and his professional misconduct. That was reflected, also, in the voluntary surrender of his registration in March of 2012.

[19] The Board, in these proceedings, seeks that he precluded for a period of not less than 10 years. On the basis of the two authorities to which I have referred, I am of the view that that is an appropriate period of preclusion to be imposed by way of a sanction in this matter. The Board referred to some other cases, however, those matters involved conduct of a lesser degree of seriousness than Mr Dibbs' conduct and I consider the matters of Ringelstein and FH to be the most relevant authorities to which I have been referred.

[20] The Tribunal will formally reprimand Mr Dibbs. It will order that he is disqualified from applying for registration as a registered health practitioner for 10 years from the date of this order.

[21] The Board seeks its costs. There is no reason why it should not have its costs. The Board is funded, if not entirely in large part, by the registration fees paid by members of the profession of good standing. It is appropriate that it has its costs in a matter such as this. The Board brings such proceedings for the protective purposes to which I have referred and, in those circumstances, it is appropriate that the board have its costs assessed on the standard basis for matters in the District Court and it will be ordered that Mr Dibbs pay those costs on that basis.

[22] On 23 May 2014, the Tribunal made a direction that the publication of information that may identify Phillip Rohan Marcus Dibbs is prohibited until further order of the Tribunal. I order that that order made on 23 May 2014 is vacated. I further order that the publication of any information that may identify any person other than Phillip Rohan Marcus Dibbs in respect of these proceedings is prohibited until further order of the tribunal.

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Judgment (14 paragraphs)

Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241 (2 June 2015)

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