Nursing and Midwifery Board of Australia v Fangaloka [2025] QCAT 169

• [3] The respondent has failed to engage in the proceedings. In the circumstances, the applicant seeks that the Tribunal makes a finding that the respondent has behaved in a way that constitutes professional misconduct with respect to each of the three allegations. The Board further submits that the appropriate sanction is:

(a) a reprimand; and

(b) that the respondent be disqualified from applying for registration for a period of four (4) months.

• [4] The Tribunal notes that the National Law defines "professional misconduct" as:

(a) unprofessional conduct by a practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

• [5] The Tribunal notes that in Health Ombudsman v Niem Quoc Tang[1] it is said that the meaning of a "substantial" departure contemplated by the definition of professional misconduct is a "large or considerable departure" from the standard required. Further, that:

This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

• [6] It is noted that section 129(1) of the National Law prohibits practitioners from practising their profession unless appropriate PII arrangements are in forced. The Board's Code of conduct for nurses, effective from August 2008 and as amended on 1 March 2018, reiterates the requirement under section 129(1) that the Respondent must hold appropriate PII arrangements at all material times.
• [7] In its submissions, the applicant referred to s 109 of the National Law, which requires that an application for renewal of registration must include a declaration by the applicant that he or she:

(a) has not practised the health profession during the preceding period of registration without appropriate PII arrangements being in place; and

(b) will not practise the health profession unless appropriate PII arrangements are in place if the applicant's registration is renewed.

• [8] The applicant bears the onus of proof to satisfy the Tribunal of all relevant facts and matters on the balance of probabilities to the standard enunciated in Briginshaw v Briginshaw ('Briginshaw').[2]
• [9] The Tribunal has had regard to the facts set out in ground 1 in the applicant's submissions and in particular that the Respondent did not hold PII in her own right as part of her employment arrangement through the Australian Nursing and Midwifery Federation or the Queensland Nursing and Midwifery Union while she practised as a registered nurse between 11 December 2017 and 31 May 2021.
• [10] In respect of ground 1, the applicant submits:

while the Board accepts that [the respondent] may have been under the mistaken belief that she was covered by PII by her former employers, it is submitted that she was, at a minimum, recklessly indifferent as to whether she was covered by appropriate PII.

• [11] In respect of ground 1, the Tribunal is satisfied that the ground is substantiated.
• [12] In respect of ground 2, the Tribunal notes the facts set out in the applicant's submissions and in particular that the respondent was not covered by PII from 11 December 2017 to 31 May 2021 while practising as a registered nurse. This resulted in the respondent's failure to meet the commitments she made to the Board on six occasions that, if she were to practise, she would only do so in accordance with the Board's PII requirement. In the circumstances, the Tribunal is satisfied that ground 2 is substantiated.
• [13] In respect of ground 3, having regard to the facts set out in the applicant's submission, the Tribunal is satisfied that, in the absence of any evidence that the respondent made the inaccurate declarations dishonestly, the respondent was recklessly indifferent as to whether she provided the correct information to the Board. The Tribunal is therefore satisfied that ground 3 is substantiated.
• [14] The Tribunal is satisfied that in respect of ground 1, the respondent's conduct amounts to professional misconduct under the first and second limbs of the definition of that term.
• [15] In respect of ground 2 and 3, the Tribunal is satisfied that the conduct amounts to professional misconduct under the first limb of the definition of that term.
• [16] The Tribunal is satisfied that whilst the respondent may not have deliberately misled the Board in indicating that she held the appropriate PII cover, ignorance of the fact that she did not hold PII is not a reasonable excuse. The Tribunal notes the reference by the applicant to the decision in Psychology Board of Australia v McDonald,[3] which stated:[4]

These allegations might be said to be merely administrative but they are far more serious than that. They go to the very structure of the profession having protection from those who avail themselves of the services of members of the profession and also to the regulation of the profession by the regulatory authorities in such a manner that ensures the public is protected.

• [17] Having regard to the fact the respondent has either not engaged at all, or only engaged intermittently and reluctantly, the Tribunal finds it difficult to make findings in respect of insight and remorse. In addition, the Tribunal, in noting the proposed sanction, is satisfied that specific and general deterrence must loom large in its decision, particularly specific deterrence. In this regard, the Tribunal notes the submission made by the applicant that the Tribunal should have regard to the following factors:

(a) whether the respondent has insight into the conduct, including why it happened, why it was wrong, and what needs to be done to prevent it happening again;

(b) any lack of contrition or remorse about what occurred, including any failure to take personal responsibility;

(c) a history of offending conduct, or repeated transgressions, as opposed to a one-off and isolated departure from an otherwise high standard of conduct; or

(d) other matters indicating either that a particular sanction is required to deter the practitioner from reoffending or, conversely, that rehabilitation has taken place.[5]

• [18] The Tribunal noted the comparable cases provided by the applicant and notes particularly the decision of Podiatry Board of Australia v Moustakas ('Moustakas')[6] which has similar facts to the present case. In that case the respondent did not hold PII for approximately two and a half years, made false declarations and representations to Ahpra during the investigation and to the insurance provider and was suspended for four months. The Tribunal considered specific deterrence was necessary despite his clear history and remorse given his insight had not fully developed and the seriousness of the conduct which involved some dishonesty (despite initially being reckless).
• [19] The Tribunal notes the applicant's submission that the present matter is more comparable with Moustakas and Chiropractic Board of Australia v Constance,[7] due to specific deterrence being of high importance in order to protect the public and instil public confidence in the profession. The Tribunal is also satisfied that the proposed sanction will provide general deterrence in respect of other nursing practitioners, ensuring that they hold the appropriate PII at all times.
• [20] The Tribunal notes that fact sheets updated May 2022 set out at page 248 of the hearing bundle note that:

If you are employed, and you only work for an employer, your employer is likely to have PII arrangements that provide appropriate cover for your practice and the risks involved in your work. An employer's PII arrangements will only provide cover for activities you carry out as part of your duties during your employment.

Arrangement can vary between different employers, so if you are not sure about what is covered by your employer's PII arrangements you should always check with your employer.

• [21] The Tribunal is concerned that this paragraph may be misleading and cause some to assume their employer will have adequate and appropriate PII insurance in circumstances where they nonetheless will still be required to have independently obtained PII insurance.
• [22] It is plain in this case that the respondent was aware of her obligations and failed to comply with them.

• [23] In the circumstances the Tribunal makes the following orders:
  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) ('National Law'), with respect to ground 1, the respondent has behaved in a way that constitutes professional misconduct as defined by subparagraphs (a) and (b) of the definition of that term in s 5 of the National Law.
  2. Pursuant to s 196(1)(b)(iii) of the National Law, with respect to allegations 2 and 3, 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.
  3. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
  4. Pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for a period of four (4) months from the date of this order.
  5. There be no order as to costs.

[1] [2020] QCAT 165 [14]-[16].

[2] [1938] HCA 34; (1938) 60 CLR 336.

[3] [2020] VCAT 158.

[5] Chiropractic Board of Australia v Oborne (Review and Regulation) [2023] VCAT 770 [32].

[6] [2022] VCAT 1042.

[7] [2024] VCAT 527.