Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014] VCAT 403

The Tribunal having found Ms Mahon guilty of three charges of professional misconduct and one charge of unprofessional conduct, the following orders are made:

1. Ms Mahon is reprimanded.
2. Ms Mahon is disqualified from applying for registration as a nurse or midwife for a period of six months from the date of this order.

Ms Catherine Hutchings, Australian Nursing and Midwifery Federation

Note: This is a revised version of reasons given orally at the conclusion of the hearing.

1. The respondent in this matter is a 71 year old registered nurse Division 1. She was 68 at the time the conduct the subject of this hearing occurred. She has had a 40 year career as a registered nurse which has been blemished by actions she took in 2010 and 2011. In October 2010, she stole one morphine vial from her workplace, which she subsequently self administered. In July 2011 she took between 4 and 6 oxycontin tablets from a patient's webster pack and self-administered them.
2. This was, she said, to alleviate pain she had in her knee before and after she had a knee replacement in early 2011. In relation to the oxycontin she said it enabled her to complete her shift.
3. Ms Mahon acknowledged she could have obtained pain relief for her knee from her doctor and that she should have taken more time off work. She said she should in fact have retired rather than return to work after her knee operation.
4. The matter came to the notice of the Applicant (the Board) by way of notification by her employer on 29 July 2011. Once approached about taking oxycontin, Ms Mahon had promptly admitted her wrongdoing to her employer. She also volunteered that she had taken the morphine back in October 2010. On 26 July 2011 she was dismissed from her employment. The Tribunal was told that she had not worked elsewhere since and did not intend to. Indeed on the 2nd of August 2011 the respondent gave an undertaking to the applicant Board not to practise until the resolution of these matters.
5. The matter was the subject of a criminal proceeding in the Magistrates Court on 27 September 2011 at which Ms Mahon pleaded guilty to charges relating to her conduct. The reference to VCAT by the Board was not made until April 2013. Mr Imrie for the Board indicated he did not have any instructions as to what the cause of the delay in the referral of the matter to the Tribunal was.

1. The parties have agreed to the following summary of facts:
   1. At all relevant times, Ms Mahon was registered to practise as a registered nurse and was working at the Grossard Court Aged Care Facility ("Facility").

Theft of one vial of Morphine 15 mg on 15 October 2010.

1. On 15 October 2010, Ms Mahon, without authorisation, removed and possessed for self-administration, one 15 mg vial of Morphine from the dangerous drug cupboard of the Bahari Unit at the Facility.
2. On 15 October 2010, Ms Mahon unlawfully self-administered the 15 mg vial of morphine.

Theft of Oxycontin for the purpose of self-administration from the Webster Pack of Mrs GH between 11 July 2011 and 24 July 2011.

1. Mrs GH [was] a resident at the Facility and suffers from a number of medical conditions.
2. During the period from 11 July 2011 to 24 July 2011, Mrs GH was prescribed Crestor, one table daily for treatment of cholesterol and Oxycontin 20mg tablets for management of her pain. Mrs GH's medications were kept in a Webster Pack at the facility.
3. Between, on or about 11 July 2011 and 24 July 2011 Ms Mahon, without authorisation, tampered with the Webster Park of Mrs GH on at least four occasions in the following manner:

6.1 Ms Mahon removed between four and six Oxycontin 20mg tablets from the Webster Pack of Mrs GH;

6.2 Ms Mahon substituted Crestor tablets (similar in appearance and size) for the removed Oxycontin tablets ("the substitution"); and

6.3 Ms Mahon, then repaired the rear of the Webster Packs with micropore tape and returned them to the Dangerous Drug cupboard where they were stored.

1. Ms Mahon self administered the unlawfully acquired Oxycontin tablets.
2. Each and every time Ms Mahon removed an Oxycontin tablet from the Webster Pack of Mrs GH, Mr GH was denied the availability of analgesia to treat her pain, as prescribed.
3. During 11 July 2011 and 24 July 2011, when the substitution occurred, Mrs GH was receiving three times her prescribed dose of Crestor placing Mrs GH at risk of harm.

1. On 29 September 2011 in the Magistrates' Court at Korumburra, Ms Mahon was found guilty of:

10.1 two charges of Posses a Drug of Dependence, pursuant to s.73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic); and

10.2 two charges of Theft pursuant to s.74 of the Crimes Act 1958 (Vic).

1. No conviction was recorded and the matter was adjourned to the Korumburra Magistrates Court on 27 September 2013.
2. Ms Mahon was required to be of good behaviour during the period of adjournment.
3. Ms Mahon was fined $500.00.
4. By way of clarification of one matter: the parties agreed at the hearing today that the allegation in paragraph 6 is that an overall total of 4-6 oxycontin tablets were taken by Ms Mahon and that any implication in paragraph 6 and 6.1 to the contrary was the result of imprecise drafting and was not correct.
5. There was no specific evidence of any harm caused to the patient by Ms Mahon's conduct but it seems clear from the circumstances that it is quite likely the patient was caused additional discomfort through being denied the provision of analgesia on the occasions where Ms Mahon substituted the oxycontin medication.

1. The contents of the referral to the Tribunal as amended are reflected in the agreed findings which the parties again jointly sought be made by the Tribunal as follows:

1. On or about 15 October 2010, while registered as a Registered Nurse, Ms Mahon engaged in professional misconduct as defined in section 5(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ("National Law") in that she stole one 15mg vial of morphine from the dangerous drug cupboard at the Bahari Unit of Grosard Court Aged Care Facility for her own use.
2. Between, on or about 11 July 2011 and 24 July 2011, while registered as a Registered Nurse, Ms Mahon engaged in professional misconduct as defined in section 5(a) of the National Law, in that she took without authority and possessed for her own use between 4 and 6 Oxycontin 20mg tablets from the Webster Pack of Mrs GH on at least 4 occasions and in so doing denied Mrs GH the availability of analgesia to treat her pain.
3. Between, on or about 11 July 2011 and 24 July 2011, while registered as a Registered Nurse, Ms Mahon engaged in professional misconduct as defined in section 5(a) of the National Law in that she placed Mrs GH at risk of harm by substituting Crestor for the Oxycontin tablets which were prescribed and which she had unlawfully removed from the Webster Pack.
4. Ms Mahon, while registered as a Registered Nurse engaged in unprofessional conduct as defined in section 5 of the National Law in that on 29 September 2011 she was found guilty without conviction of the following charges:

(a) two charges of Possess a Drug of Dependence, pursuant to s.73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic); and

(b) two charges of Theft pursuant to s.74 of the Crimes ct 1958 (Vic).

1. It is jointly agreed by the parties and accepted by this Tribunal that theft of the morphine and the theft of the oxycontin and the placing of the patient at the risk of harm constitutes conduct which is substantially below the standard reasonably expected of a registered health practitioner of Ms Mahon's level of training and experience within the meaning of the (a) of the definition of professional misconduct in the National Law. Similarly the Tribunal finds in relation to the fourth charge, that the criminal findings against Ms Mahon fall within the definition of unprofessional conduct in the National Law (namely conduct of a lesser standard than that which might reasonably be expected of the practitioner by the public, or her peers). Accordingly, the Tribunal makes findings in the terms agreed between the parties set out above.

1. Turning now to the appropriate determinations in this case. The parties have again agreed on determinations which they jointly seek. These are that the Tribunal reprimand Ms Mahon and make an order preventing her from being able to apply for registration for six months.
2. In the light of this agreement between the parties our task is to determine whether the agreed determinations are within the permissible range in accordance with a number of authorities including Law Institute of Victoria v Brott[1]. The factors relevant to the determination include the seriousness of the conduct, insight and remorse, the respondent's acceptance of guilt and general and specific deterrence.
3. No personal references or work history details were provided on Ms Mahon's behalf. It was indicated that the two years it has taken to bring this matter to the Tribunal has taken a toll on her she simply wants to put it behind her. She does not intend to resume nursing or to seek registration at any time in the future.
4. The overriding factors which the Tribunal must consider are the protection of the public (rather than the punishment of the practitioner) and the maintenance of the reputation of the profession in the eyes of the public.
5. In this case the most important factor is the seriousness of the conduct of the practitioner. The conduct here is very serious for a number of reasons. First, nurses have a vital role to play in ensuring that addictive pain killing drugs are available to the patients who need them, yet are not allowed to get into the wrong hands. They occupy a position of trust. It is important for the effective operation of the health system that the community have confidence that nurses are able to be relied upon to act as gate keepers and deal with such drugs strictly in accordance with the law and the rules applicable to their use. Ms Mahon's breaches of trust in this regard are serious because they tend to undermine that confidence in the nursing profession.
6. Second, Ms Mahon's conduct potentially placed her patient at risk of harm and undermined her pain management. He patient was in a vulnerable position reliant on Ms Mahon as the most senior nurse supervising nursing care at the facility and dependent on her for proper pain relief. The patient also depended on Ms Mahon not altering her drug regime in a way which potentially undermined her health by providing her with three times the registered dose of her anti-cholesterol drug on the four to six occasions where replacements occurred. In doing so, Ms Mahon has breached the primary principle of drug administration, namely that medications are to be administered strictly as prescribed by the doctor. This conduct also constitutes a failure to meet the National Competency Standards for Registered Nurses.
7. Third, her conduct of course amounted to theft. The morphine and oxycontin were stolen from her employer and her patient. For these reasons general deterrence has a big role to play here. A condign penalty is called for - one which involves a substantial period of prohibition against practising. Specific deterrence is of less significance in this case. To her credit, Ms Mahon admitted her lapses at a very early stage and cooperated with the police and the Board. The fact that she felt racked with guilt and described her actions as stupid indicates that she has insight into some aspects of her conduct.
8. On the other hand, the explanations relating to the pain Ms Mahon felt in her knee as the reason for taking the morphine and oxycontin were not very detailed. They did not fully explain the circumstances in which this occurred. Also, we note that no specific statement empathising with the position of the patient and her family was made. There was no acknowledgement of the effect the denial of analgesia would have had on the patient. Also we note the patient and family were affected by the incident - the patient was later moved to another facility some distance away. Finally, no other plea material was provided on behalf of Ms Mahon.
9. One other factor of relevance here is delay. It is a factor in Ms Mahon's favour, in that these proceedings have been hanging over her head for a significant period. This is a factor to be taken into account in accordance with applicable authority.
10. For the above reasons, in all the circumstances, the conduct engaged in by Ms Mahon was very serious. Were it not for the fact that she has already been prevented from practising two and a half years, we would regard the six month agreed prohibition period as insufficient. However taking the two and a half year period into account together with the other applicable factors, we find that the further six month prohibition agreed between the parties is within the permissible range here. Ms Mahon's conduct also warrants a reprimand to convey the community's denunciation of her conduct.
11. Accordingly, the Tribunal orders that Ms Mahon be reprimanded, and secondly, be disqualified from applying for registration for a period of six months from the date of the Tribunal's orders.

[1] (Legal Practice) [2008] VCAT 1998