Nursing and Midwifery Board of Australia v Kamp [2025] QCAT 430

• [1] This matter was listed on 16 April 2025. At that time, the three assessors were all available. The matter had been discussed to a large extent, but we had not heard submissions. Ms Nowlan is not available today, but I have discussed the matter outside with Dr Glazebrook and Dr Harley, so we will proceed.
• [2] The respondent was first registered as an enrolled nurse on 8 December 2017. He was working in the relevant period as an enrolled nurse for a nursing agency. This matter was referred to the Tribunal in respect of certain conduct by the respondent. That conduct is, briefly put, as follows:

(a) On 27 December 2020, he was intercepted by police. He was directed to provide a sample of his saliva for a random drug test, that drug test was positive for a methamphetamine, and he was charged with a traffic offence. He was later found guilty and fined with no conviction recorded.

(b) On 19 February 2021, when police were conducting random patrols at Nundah, he was found with a number of bags containing substances which subsequently were found to be methamphetamine. He was served with a notice to appear. He was convicted and fined. This time a conviction was recorded. As a result of that, the Queensland Police Service notified the Office of the Health Ombudsman in respect of the driving charge, and then later in February, in respect of the possession charge.

(c) On 24 February 2021, Mr Kamp provided a response to the Nursing and Midwifery Board of Australia's ('Board') Immediate Action Committee, in which he noted that, with regard to the driving charge, he did not use the methamphetamine, but it was by way of second-hand exposure. He was attending Narcotics Anonymous. He was honest and transparent in his submissions, and he was managing his health adequately.

• [3] A couple of things about that should be noted. The first is that it was of no consequence that he submitted that he had the drug in his system by way of second-hand exposure. The gravamen of these proceedings is that he was convicted on his own plea of guilty of that charge. He said he was attending Narcotics Anonymous, but as Dr McDonald pointed out in his report of July 2021, because that is an anonymous proceeding, there is no way of ascertaining whether that is true or not.
• [4] He said he was managing his health adequately and had not reengaged in substance use. However, he disclosed to Dr McDonald in July that he had had a hair test, showing that he had a positive reading in about March.
• [5] The two other charges, of course, relate to non-notification to Ahpra of the convictions. That is a strict liability situation. A practitioner is required to do the notification. I have had a discussion with counsel for the Board, and I propose to find that the non-notification grounds amount to unprofessional conduct within the meaning of the definition of that term in s 5 of the Health Practitioner Regulation National Law (Queensland).
• [6] On 25 February 2021, the Board's Immediate Action Committee formed a reasonable belief that it was necessary to take immediate action, and they did so. The respondent's registration was suspended by way of immediate action. He was also ordered to undergo a health assessment. I understand that the applicant does not contest the characterisation of the conduct. It is passably clear that offences of a criminal nature, which result in a finding of guilt or a plea of guilty, would normally amount to professional misconduct.
• [7] The remaining question relates to sanction. Sanction is not about punishing people. It is about protecting the profession in the eyes of the public and maintaining the public's safety. The Board have asked for a reprimand, and that is not a trivial penalty. It is to mark the clear inappropriateness of the conduct. The Board also understands, and I understand, that this conduct was not directly related to the respondent's work as a nurse, but the trouble with his conduct is this: it would, if the public knew about it, bring the profession into disrepute.
• [8] There is a useful discussion in the case of Nursing and Midwifery Board v Maher (Review and Regulation) [2020] VCAT 1125 ('Maher') and it appears in paragraphs [70] to [73] and [75]. Just for the respondent's benefit, little pieces from those paragraphs are these: '[the] conduct has a very real potential to undermine the credibility of other [nurses]', and '[the conduct] showed an absence of the necessary public and professional confidence that [the respondent] would uphold and observe the high standards of moral rectitude required to be a registered nurse'.[1] That is the essence of why we are here today.
• [9] When the Tribunal is thinking about the question of sanction, there are many competing factors to think about. The most significant matter here is what is called general deterrence. That means sending out a message to other nurses that to behave in this way will impact on the practitioner's right to practise, so as to ensure that the public is protected. That is so other nurses know not to engage in this conduct.
• [10] There is also specific deterrence, and the Tribunal is somewhat at a loss here. The specific deterrence is deterring the respondent personally from repeating the behaviour. We have heard the respondent's submission this morning, but the only medical evidence we have as to his behaviour comes from Dr McDonald's report, old as it is, because it dates back to 2021. Then, the respondent told Dr McDonald that he had been abstinent for about three to four months, that is, prior to July 2021. The respondent told Dr McDonald that he had used methamphetamine three days prior to the driving charge. The respondent told Dr McDonald that he did not attend work drug-affected, but he could have attended work in the following days while detoxifying.
• [11] The respondent said that he had been attending Narcotics Anonymous for four months before he saw Dr McDonald and that he had also sought treatment from the Biala Community Health Centre where he was given a week of diazepam treatment. Dr McDonald mentioned the respondent's forensic history - that is his criminal history. I will mention it in passing because they are very dated some of them, but they showed some earlier drug use. I will not take it any further than that.
• [12] At that time, Dr McDonald opined that the respondent's brain needed a long period of chemical abstinence in order to promote stability and healthier modes of thinking. Dr McDonald thought at that time his addiction would be a difficult task to manage, and he thought then that there was a role for counselling, psychological, and psychiatric support.
• [13] As I mentioned earlier, Dr McDonald pointed out that attendance at Narcotics Anonymous was difficult to prove and, while useful, was not the answer to all the problems. He told the Board he would imagine twelve months of negative hair and urine toxicology would be required, and there would be a need for supervision when the respondent returned to work. They are the things the respondent needs to think about when he reapplies for registration. The respondent needs to be in a position to speak to the Board about those conditions. That is why I mentioned to the respondent during the hearing that he will need a little bit of time to prepare his application for re-registration.
• [14] The Board has put forward some comparable cases including the case of Maher. That does not mean the comparable cases are followed slavishly - they are just for the Tribunal to know the range of penalties available so that the Tribunal does not make the mistake of going outside the reasonable sanctions. Maher is very similar to the present matter because in that case there was a nurse using ice and GHB. In that case, the offences did not occur in a work context, but the reasons say they were of serious concern to the Board because it considered convictions did, or may have affected, her suitability to continue to practise the profession. In that case, the disqualification was for six months. I should say, the charges were from 2018, and the judgment was in 2020.
• [15] The Board has contended that the appropriate sanction is that the respondent be reprimanded and their original submission (which I think it still is their submission) that the respondent be disqualified from reapplying for registration for a six-month period. The respondent initially made a submission that he thought there should be no further disqualification, but I think he may have come back a little bit from that submission.
• [16] In any event, the Board says that the reason there should be a disqualification is the seriousness of the offences. There is doubt about the respondent's complete insight into the effect on the reputation of the profession although he has spoken about that more recently. General deterrence is concerned with the lack of evidence as to whether he has recovered as well as he says.
• [17] I raised the matter of recency of practice. That is going to be a matter that the respondent is going to have to address to the Board, so he will need to look that up because he has not practised for so long. That is why I suggested to the respondent that he use this time because the disqualification that the Tribunal is comfortably satisfied should be imposed is three months from today.

1. Pursuant to s 126(2) of the Health Ombudsman Act 2013 (Qld), the requirements of s 126(1)(b) of the Health Ombudsman Act 2013 (Qld) are dispensed with.
2. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) ('National Law'), in respect of ground 1, the respondent has behaved in a way that constitutes professional misconduct.
3. Pursuant to s 196(1)(b)(ii) of the National Law, in respect of grounds 2 and 3, the respondent has behaved in a way that constitutes unprofessional conduct.
4. Pursuant to s 196(1)(b)(iii) of the National Law, in respect of grounds 1, 2 and 3, when taken together, the respondent has behaved in a way that constitutes professional misconduct.
5. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
6. 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 three (3) months from the date of this order.
7. There is no order as to costs.

[1] Nursing and Midwifery Board v Maher (Review and Regulation) [2020] VCAT 1125, [73], [75].