[2]

SANCTION - where the respondent has engaged in protracted and multifaceted attempts to mislead regulators - whether she is a fit and proper person now to hold registration - where sanction should emphasize the vital importance of health practitioners being truthful and cooperative with regulators - where respondents conduct stems from a single instance of bad judgment - where respondent otherwise has an exemplary history with no other disciplinary notifications - where respondent belatedly has apologised for her conduct to her profession and the Tribunal

Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391 | Case summary | Zoe

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QLDQCAT

Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391

[2022] QCAT 391

Queensland Civil and Administrative Tribunal|2022-11-21|Before: Judicial Member J

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General information, not legal advice.

At a glance

Source facts

Court

Queensland Civil and Administrative Tribunal

Decision date

2022-11-21

Before

Judicial Member J

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

PROFESSIONS AND TRADES - NURSES - PROFESSIONAL MISCONDUCT - where respondent is a registered nurse with post graduate qualifications - where she works at a practice conducted by her husband a bariatric hernia and general surgeon - where practice is operated through a corporate entity of which the respondent and her husband are the sole directors and shareholders - where she works in the practice as a registered nurse - where respondent issued a prescription to a patient for a S4 anti-biotic in her husband's name without his knowledge or consent - where she signed his name on the prescription - where during the course of investigations into the practice the respondent informed the OHO and Ahpra falsely that she had not issued the prescription when she knew that she had - where in response to a compulsive notice issued to her to produce documents including prescriptions the respondent failed to produce the relevant prescription - where prior to the referral the respondent admitted that she had been untruthful in her responses to the OHO and Ahpra and that she had failed to produce the prescription in response to the compulsive notice but where she denied that she did so to mislead the Board and Ahpra - where the practice website was redesigned and the respondent was described therein as a "nurse practitioner" a protected accreditation under the National Law where she was not so qualified - where this was brought to her attention on the 30 June 2016 by another practitioner - where the error was not corrected until after the respondent was notified by Ahpra in October 2017 - where the holding out allegation was disputed at the trial by the respondent but the Tribunal rejected her evidence in favour of the evidence of the practitioner who met with her on 30 June 2016 - where respondent continued to deny in her evidence that in failing to produce the prescription in response to the compulsive notice she did so intending to mislead Ahpra - where at end of her cross-examination she admitted that she did so act as part of her overall attempt to cover up her issuing of the prescription

[18]

[12] In her affidavit filed on 4 April 2022, the respondent states that she has been awarded a Master of Nursing (Nurse Practitioner) by Latrobe University. It is common ground that she has applied to be registered as a nurse practitioner, but consideration of her application has been deferred pending the outcome of these proceedings. It is common ground that prior to, and since the health service complaints, the subject of these proceedings, she has no disciplinary history.
[13] On or about 29 May 2017 the Office of the Health Ombudsman (OHO) received a notification from a confidential notifier which included allegations that the respondent had consulted with the patient in the absence of Dr Lockie, logged into his computer, printed out a prescription for a Schedule 4 drug, and signed it in the name of Dr Lockie.
[14] On 11 July 2017, the respondent provided a submission to the OHO in which she denied ever having printed or signed a prescription on behalf of Dr Lockie. On or about 17 August 2017, and on or about 18 September 2017 the OHO received two notifications alleging that the respondent was holding herself out as a nurse practitioner on the website www.drphillockie.com.au.
[15] The OHO referred the three notifications to the Australian Health Practitioner Regulation Agency (Ahpra).
[16] On 27 October 2017, the respondent provided a submission to Ahpra in which she stated, inter alia, that she had never signed a prescription on her husband's behalf or otherwise.
[17] On 8 February 2018 the Board decided to investigate under section 160(1)(a) of the National Law. On 9 March 2018 a notice was issued to the respondent pursuant to clause 1 of schedule 5 to the National Law requiring the production of information (notice).
[18] On 21 March 2018 the respondent produced documents and gave information in response to the notice.
[19] On 23 November 2018 the respondent provided a submission to Ahpra in which she stated that she wrote a prescription for a patient (LC) on 22 November 2016 under Dr Lockie's name and signed it as "P Lockie".
[20] In relation to the three grounds in the referral, the statement of agreed and disputed facts contains a number of relevant admissions. The factual disputes are summarised above.
[21] The respondent admits that:

[25]

[26] At the outset of the hearing, Counsel for the Board, Mr Templeton, identified that the key issue for decision will be determined by the Tribunal's findings of fact concerning what was said during a meeting between the respondent and Mr Lee Poole in 2016. Both agree that they did indeed meet at the practice at Everton Park on 30 June 2016. Each has a completely different recollection of what was discussed.
[27] There is really no dispute that in 2014 - 2015, the practice engaged web designers to redesign the practice website. The respondent says this primarily followed the departure of Catherine Smith from the practice in or about May 2014. Ms Smith is (and was then) a nurse practitioner who conducted her own practice, Healthy Weight Clinic, through a collaborative agreement with Dr Lockie from the Everton Park Practice. Again, there is no dispute that Ms Smith departed at a time when her relationship with the respondent was strained. Each has their own version for their fallout. It is not necessary for the Tribunal to resolve that dispute.
[28] It is helpful to set out the respondent's response to this ground as stated in her affidavit in full:
1. On or about 9 October 2017, I received notification from AHPRA that the title "nurse practitioner" was used in association with my name on the website http://www.drphillockie.com.au (practice website). This was the first time that I became aware that the title "nurse practitioner" was being used in association with my name on the practice website.
2. When I was informed that the title "nurse practitioner" was used in association with my name, I was shocked and confused. I appreciated, and continue to appreciate, the significance of the title "nurse practitioner" and the distinction that it has from a registered nurse in the nursing profession.
3. I've never knowingly used the title "nurse practitioner" in association with my name.
4. I did not direct or authorise anyone to use the title "nurse practitioner" in association with my name on the practice website.
5. After becoming aware of the use of the words "nurse practitioner", in association with my name, I called Mr Raymond Strachan of Smart Place, the website developer used by the practice, and requested that he remove all references to "nurse practitioner" in association with my name from the practice website immediately.
6. Mr Ray Strachan called me back approximately 30 minutes later and informed me and I believed that all references to "nurse practitioner" in association with my name on the practice website had been removed.
7. About 11 October 2017, Mr Strachan informed me by email, and I believed, during a website update in or around early 2015, he had taken information from another page on the practice website and used the title "nurse practitioner", in association with my name.
8. On about 13 October 2017, Mr Strachan informed me, again by email, and I believe, that he had not appreciated the significance of the title "nurse practitioner" and thought that it was a general title applicable to all nurses.
9. In or around early 2015, the update of the practice website was primarily focusing on changing the layout, design and colours of the practice website. It was not the intention of the update to review the content written on the practice website, other than to remove Ms Catherine Smith's profile from the practice website because Ms Smith had ceased to be employed in the practice in or around July 2015.
10. Ms Catherine Smith, who held registration as a nurse practitioner, had formerly worked as a contractor at the practice. I believe that Mr Strachan may have seen the title "nurse practitioner" used in association with Mr Smith's name and mistakenly apply the title to references to my name on the practice website.
11. I was involved in the practice website update by considering and conferring with Mr Strachan on Dr Lockie's behalf about the "look" (layout, design and colours) of the draft pages of the updated practice website. I did not consider or read the content of the updated practice website in any detail because I believe that all the content had merely been transported from the previous version of the practice website.
12. I am unaware of any reference to the title "nurse practitioner" in association with my name on the practice website prior to the update in around early 2015.
13. Following notification by AHPRA on 9 October 2017, all references to the title "nurse practitioner" in association with my name on the practice website had been removed.
[29] Mr Templeton cross examined the respondent at some length about her role in the restructure of the website. The part of the rebuilt webpage that refers to the respondent appears at a number of places in the hearing brief. For example, there is a copy at pages 71 to 72[2] of the hearing brief. On 71 the respondent is referred under the heading "free consultation", as a nurse practitioner. These pages were annexed to one of the complaints made about this issue, which was sent to the respondent under cover of letter dated 9 October 2017 from Ahpra.[3] At page 72 (an extract from the rebuilt website) it is stated (by reference to the respondent's role in the practice):

[32]

[35] When he gave evidence, he produced contemporaneous notes,[6] which he says he took on a device during the meeting, and he also produced a series of emails leading to the meeting.[7]
[36] He says that a PhD research student Erin Conway was present at the meeting as he was interested in accessing the practice data for his study. The respondent has no memory of Mr Conway being there despite the emails indicating that it was her who contacted Mr Conway (and cc'd Mr Poole) on 23 June 2016 to set up the 30 June meeting.
[37] Mr Poole says that they discussed the many topics referred to in his notes and that the discussion about the designation as a nurse practitioner on the website came up because it had come to his notice and he recalled looking at the website but could not remember when.
[38] In her cross examination the respondent could not recall discussing many of the topics referred to in the contemporaneous notes, although she could remember discussing "Leonie Valentine" and follow-up with university courses.
[39] As I have set out above, the respondent's version as to what occurred at the meeting is completely at odds with Mr Poole's evidence. He did not take note of the reference to the discussion about the website because he regarded the matter as ancillary to his purpose for being there, and that the respondent had said that she would "amend".
[40] Mr Wilson cross-examined him about when he was first informed of the issue by reference to the statement of Ms Smith[8] who knew Mr Poole through their mutual association with the Australian College of Nurse Practitioners. Ms Smith says Mr Poole was asking her if the respondent was a Nurse Practitioner in 2014. He could not recall. This is before the rebuild of the website, and the inclusion of the descriptor of the respondent as a "nurse practitioner" in a number of places on the website. Mr Poole also conceded it was possible (as Ms Smith alleged), although he could not recall it, that she had emailed him in August 2017 about the respondent (among other things) being referred to as a nurse practitioner on more than one page of the website. The respondent's recollection of the conversation with Mr Poole is set out in paragraphs 43 to 51 of her affidavit. In effect she said he took a very "critical and dismissive" attitude towards her and the discussion was about her using the title "advanced clinical practitioner" below her practice signature. She says that to her recollection is that "it became apparent that he had little interest in discussing research students and only wanted to discuss my role and title used in the practice."
[41] I prefer the evidence of Mr Poole about what was said at the meeting to that of the respondent for a number of reasons. Firstly, he was an impressive witness, willing to make concessions in cross examination, and his contemporaneous notes support his version that the meeting was cordial and not as the respondent describes in her affidavit. The contents of the emails between them leading up to the meeting were also in cordial terms and gave no hint of any criticism or concern about the use or otherwise of designations by the respondent.
[42] Secondly, it is a remarkable coincidence that in Mr Poole's short statutory declaration he records the respondent as saying "this was an oversight and had occurred when they removed a previous employee who had been a nurse practitioner and put Shirley's name in"; which is precisely the reason the respondent now gives which I accept is more likely than not. If he is not being truthful, it is indeed remarkable that he recalls this very excuse in his statutory declaration. Although not particularly significant, the emails between Mr Poole and the respondent prior to their meeting in Exhibit 3 suggest a friendly exchange with no hint of criticism or aggression on Mr Poole's behalf.
[43] Finally, my conclusions about the respondent's reliability in relation to the key disputed issue in Ground 3 as a matter of logic and common-sense feed into my overall impression of her reliability as a witness generally.

[33]

[44] It follows from my factual findings in relation to Ground 2, that the statement in her solicitor's submission to Ahpra dated 27 October 2017, that prior to the Ahpra letter of 9 October 1207 she was unaware that she was being described as a nurse practitioner on the practice website was false.
[45] As set out above, she admits that in her response dated 21 March 2018 to a compulsive notice under section 1(b) of Schedule 5 of the National Law, which referred to clinical notes relating to LC, and specifically referring to prescriptions, she included a pathology request issued by her on 22 November 2016 at 10:59 am but did not include the record of issuing the prescription to LC at 11:09 am in the name of her husband. She denies generally deliberately misleading or attempting to mislead the Board and/or Ahpra. Her position on this issue is articulated thus in her affidavit:
1. In relation to subparagraph 6(a)(iii) of the Referral in this proceeding, I admit that my response dated 21 March 2018 to a compulsive notice issued by the Board (Ahpra) on 9 March 2018 did not include a record of the issuance of the prescription. This was because I believed that I was only required to provide patient records detailing my interactions with patient LC. Because the prescription was recorded, albeit falsely, as being issued by Dr Lockie, I believed that it was not a record in my possession or control. I held this belief because I knew that Dr Lockie had also received a notice requiring him to produce his patient records concerning patient LC.
2. My failure to include a record of the prescription in my response to the compulsive notice was not intended to mislead. I sincerely regret that my response to the compulsive notice did not include a record of the issuance of the prescription.
[46] In her cross-examination she acknowledged, as she had to, that to issue the prescription to LC on 22 November 2016, she had to logout of the software program used by the practice called GENIE after issuing the pathology request, and then login using her husband's username and password to enable her to issue the prescription. The prescription she issued and signed is at page 313 of the hearing brief. A prescription issued by Dr Lockie to LC on 24 November 2016 for erythromycin is at page 314 of the hearing brief. When comparisons are made of the signatures, it is clear that she did not attempt to forge his actual signature, however, as he did not know that she did this, and would not have authorised her to sign his name on a prescription, in so signing, she falsified the prescription.
[47] She knew immediately that what she had done was wrong; beyond her scope of practice as a registered nurse, and she admits her actions in issuing the prescription amounts to professional misconduct.
[48] Sadly, this competent and obviously intelligent person, has then proceeded over a number of years to lie to regulators about this conduct. I accept her motivation was because she felt ashamed, and did not want her husband to know the truth, which of course does not excuse registered health practitioners telling falsehoods to regulators.
[49] As set out above, her denials about issuing the prescription were withdrawn before the filing of the Referral. Her denials in relation to Ground 3 (relating to the failure to include the prescription in the documents produced as a result of the compulsive notice) were maintained right up to the end of her cross-examination in her evidence to the Tribunal.
[50] Mr Templeton cross-examined the respondent at some length about the contents of paragraph 64 of her affidavit. Mr Templeton gave her a number of opportunities to retract her evidence, and accept that she had made a deliberate decision not to include the prescription, despite the notice specifically referring to prescriptions. Mr Templeton put to her a number of occasions, that she turned her mind to the decision whether or not to produce a prescription, and had made a conscious decision to admit it from the record she produced.
[51] There was a period during the questioning when she was clearly uncomfortable and upset, and she finally conceded that she did make a conscious decision to omit the prescription. She accepted on a number of occasions that she had unrestricted access to the relevant clinical records covered by the notice. She accepted that she provided the attachment (clinical records re LC) which is attached to the email sent by her then solicitors on 21 March 2018 to AHPRA which did not include the prescription.
[52] As can be seen from that email, it was sent to Ahpra at 9:55:37 am on 21 March 2018. Mr Templeton asked the respondent about Exhibit 4. That is an email from Ahpra to Dr Lockie (who was under investigation at the time) enclosing the Schedule 5 notice to provide information in relation to LC which was sent to him on 21 March 2018 3:50:00 pm.
[53] It follows that, contrary to the last sentence in paragraph 64, when her solicitor sent the records that morning, she could not have known that her husband had received a similar notice. Again, after a period of questioning, when she did not answer questions and was evasive, she finally accepted that she had omitted the prescription in the records sent to Ahpra on 21 March 2018, as part of her ongoing attempt to cover up what she had initially done in relation to the issue of the prescription to LC.

[35]

...The dietician, Loretta Howard, asked me to check LC's wounds. Ms Howard informed me, and I believe that patient LC was very concerned about the state of her abominable wounds. I recall a patient LC presented to me in a very distressed state.

I recall that Dr Lockie was not at the practice that day because he was working in Ipswich General Hospital on an operating list. When Dr Lockie works on operating lists, he is generally not contactable throughout the day and does not return to the practice after completing his work at the hospital.

I attended patient LC in one of the practice consulting rooms where I removed the dressing from patient LC's wound and noticed immediately that the wound was showing signs of infection. I took a swab of the wound and sent the swab to pathology for organisms and sensitivity examination. I understood from my professional training and experience the prompt treatment of an abdominal wound showing signs of infection is extremely important.

Patient LC asked me if there was anything I could do to treat the wound because, she informed me and I believed, she was unable to get an appointment to see her general practitioner. I formed the view that the appropriate medical intervention would be for patient LC to be administered a broad-spectrum antibiotic.

Augmentin Duo Forte is a broad-spectrum antibiotic. I believed that it was the correct treatment for patient LCs wound. I believe this because I knew that it was in keeping with Dr Lockie is normal practice, having seen him prescribe this antibiotic in similar circumstances many times.

I accessed the clinical records of the practice and issued a prescription to patient LC for Augmentin Duo Forte in the name of Dr Philip Lockie.

I did not attempt to contact Dr Lockie about patient LC prior to or in the immediate aftermath of issuing the prescription.

I knew that I was not allowed to issue prescriptions for Augmentin Duo Forte in any circumstances.

As soon as I had issued the prescription, I immediately regretted doing so because I realised it was outside my scope of practice and was a serious breach of trust with my supervising surgeon and husband. I decided not tell anyone about the prescription because I hope that I could leave my decision behind me and that it would go unnoticed.

My sole motivation was to provide immediate care to patient LC in circumstances where a wound was infected and causing her extreme distress and she told me, and I believed that her home circumstances may be extremely difficult for her to see her general practitioner in a timely fashion.

I have never issued a prescription before or after issuing the prescription to patient LC.

[36]

[58] I am satisfied to the requisite standard that in issuing the prescription of Augmentin Duo Forte to patient LC in the name of her husband, falsifying his signature on the prescription, in circumstances in which she knew that she was not authorised to prescribe such medication on Dr Lockie's behalf or at all, which conduct was contrary to section 146(3) of the Health (Drugs and Poisons) Regulation 1996 (Qld) her actions amount to professional misconduct.
[59] In the statement of agreed and disputed facts,[10] the respondent does not admit that her conduct in Ground 1 was in contravention of the Code of Professional Conduct for Nurses or the Code of Ethics[11] for nurses then in force. As set out above, her conduct was contrary to law, and I have found that she falsified her husband's signature on the prescription. In accordance with paragraph 5 of her submission, I am satisfied that she did breach those instruments by breaching the law and acting as she did. The most serious conduct is that reflected in Ground 3, both in her admitted deceptions on two occasions about issuing the prescription, both retracted before the filing of the Referral and her deliberate deception in relation to the notice to produce, which she only accepted at the hearing after being cross-examined.
[60] In relation to the Ground 3, I am satisfied to the requisite standard that in the respondents' submissions to the Board/ Ahpra dated 11 July 2017 and 27 October 2017 she falsely contended that she had never purported to issue a prescription for any patient on behalf of our Dr Lockie. I am satisfied that in her response dated 21 March 2019 in response to the compulsive notice, she deliberately misled or attempted to mislead the Board/Ahpra as to her issuing of the prescription for Augmentin Duo Forte tablets on 22 November 2016. I am also satisfied to the requisite standard that on or about 27 October 2017, in her submissions to the Board, she falsely asserted that she was unaware of the fact (prior to 9 October 2017) that the website of her employer listed her as a nurse practitioner and that no one had ever raised this issue with her previously.
[61] All of the applicable Codes refer in various terminology to the need for nurses to behave ethically, honestly and with integrity and to obey the law.
[62] Tribunals in this state and others have emphasised repeatedly the need for healthcare providers to be honest and frank with regulators.
[63] In Psychology Board of Australia v Shahinper [2016] QCAT 259 (Shahinper) the Tribunal wrote at [38]:

[50]

[78] It can be accepted, as Mr Wilson submits on behalf of the respondent,[20] that Dhilon and Picones both involved different and more serious conduct, and where the lack of candour was incidental to that conduct. Mr Templeton does not seek to compare the facts of those cases; rather he relies on these common statements of principle and applies them to the facts of this case.
[79] The respondent's primary submission is that in exercising the protective jurisdiction, the Tribunal can adequately reflect principles of specific and general deterrence, and thereby appropriately uphold the reputation of the profession in the public mind, by taking the course the Tribunal took in Health Ombudsman v Easton (No 2) [2019] QCAT 258 by imposing a reprimand and a substantial fine.
[80] It is common ground that the respondent's decision making on 22 November 2016 involved a serious error of judgment. Although she went beyond her scope of practice, no challenge is made to the clinical decision she made that day in relation to LC. The whole course of misconduct set out in Grounds 1 and 2 follows on from that error of judgment.
[81] In relation to the "holding out" conduct proved in relation to Ground 2 and her quite elaborate description of the interaction between herself and Mr Poole on 30 June 2016,[21] in her affidavit (which I have not accepted), as I have noted the description of her as a nurse practitioner in the re-modelled website was not the result of a deliberate decision by her. As my reasons disclose, the description appears to have resulted because of an error made by the web developer. As I have noted, there is no evidence that she attempted in any other way (from 30 June 2016 - 9 October 2017), to hold herself out as a nurse practitioner e.g. to a patient or another professional.
[82] As I have noted, she elected to deny her actions on the 16th November to regulators for approximately 16 months, probably because of the shame and embarrassment she felt in relation to her actions particularly as they affected her husband. Her conduct in relation to the compulsive notice is inexplicable on the evidence before the Tribunal. As with her denials to OHO and Ahpra, as an intelligent person, it should have been obvious to her that her actions would be uncovered. There is no evidence of any impairment, health or otherwise, that would explain her actions.
[83] Her decision to dispute the conversation with Mr Poole, and therefore her knowledge from 30 June 2016 of the misdescription of her qualifications on the practice webpage is difficult to understand as well. Once she was advised by Ahpra, the error was corrected. I do not think her version of the conversation given many years after the event, which I have not accepted, is indicative of any serious lack of candour. It is not in the same area of seriousness as her conduct in relation to Ground 3 particularly the compulsive notice denials.
[84] Professor Kesh Baboolal has provided a character reference.[22] I accept that he was aware of the nature of the allegations made against the respondent.[23] He has never doubted her honesty or integrity. I do not accept his characterisation of the allegations in Ground 3 as involving merely a significant lack of judgment. I do accept that, apart from this conduct, she has never had any disciplinary notifications or allegations. I accept that she is a caring professional and a strong advocate for her patients.
[85] In his submission,[24] Mr Wilson refers to the completion of his client of two post-graduate qualifications including a Master of Nursing (Nurse Practitioner). The only relevance to the issue of sanction of this factor is that it indicates that, despite the lengthy investigation and disciplinary process leading up to the hearing, she is prepared in a significant way to continue to strive to educate herself as a nurse.
[86] The lack of candour here is so serious as to call for a period out of practice to reflect the principles set out above. The respondent accepts that she should be reprimanded and a reprimand is not a trivial penalty in itself as it represents a public denouncement of her conduct. The question for the Tribunal is whether the conduct is so serious as to lead it to be satisfied that the respondent is now not a fit and proper person to hold registration. Not without some hesitation I have decided that the evidence is not such as to lead me to conclude to the relevant standard that she presently is unfit to practice.
[87] In summary the following matters (which are referred to in more detail in these reasons) have persuaded me that a period of suspension would adequately reflect the relevant principles together with the reprimand:

[52]

[88] In my opinion, the protection of the public and the profession's reputation can be achieved by ordering a period of 9 months suspension of her registration. As suspension was not part of the sanction proposed by Mr Wilson on the respondent's behalf, and to give her a reasonable time to adjust her situation to ensure that the order is given effect, I will allow her a period of 3 weeks from today's date before the suspension comes into effect. Specific deterrence can be emphasised as can general deterrence by such a response, representing, as it does, a strong denunciation of health practitioners who choose to mislead regulators and engage in dishonest conduct for whatever reason.
[89] Such a response is in line with decisions such as Medical Board of Australia v Shah [2016] QCAT 158. The conduct involved the practitioner inappropriately sending an email to a practitioner treating his now deceased former wife, without her authority and trying to find out information about or involve himself in her treatment regime; accessing his former wife's online medical records without written approval in breach of the Code of Conduct for Doctors in Australia and Queensland Health's information policy of 2005 without reasonable justification; and knowingly making and failing to correct a series of related false statements to Ahpra on three occasions intending and tending to mislead.
[90] As in this case, the respondent disputed making false statements to Ahpra with the intention to mislead. He was reprimanded and suspended from practice for 6 months. Conditions were also imposed on his registration. As here, the Tribunal made adverse findings of credit against D Shah who gave evidence at the hearing.
[91] Mr Wilson also refers to Health Ombudsman v NLM [2018] QCAT 164. I do not regard that case as comparable. Although the admitted professional misconduct involved dishonesty, there was not dishonesty towards the regulator. The Tribunal found that practitioner had been "frank, honest and co-operative throughout the investigation process and these disciplinary proceedings",[25] which is not the case here.