Nursing and Midwifery Board of Australia v XIW [2025] QCAT 98

(a) one count of trafficking in a dangerous drug;

(b) three counts of supplying schedule 1 dangerous drugs; and

(c) four counts of supplying schedule 2 dangerous drugs.

• [4] In this regard, the honourable sentencing Judge made a number of observations including:

The persistence of your offending whilst on bail and the fact that you continued to offend - it is part and parcel of it, really - but after police intervention on two occasions is an aggravating feature.

I do think it is important to capitalise on the progress that you have made. But I consider it necessary, given how much of a grip you were in when it came to your dependence on this drug; your repeated offending and the fact that police intervention and bail orders did not stop you; that to achieve the relevant sentencing purposes, which include ensuring your rehabilitation to the extent that I can, that it is best achieved by giving you supervision for as long as I can. I can do that by imposing an appropriate head sentence, and I consider it to be four and a-half years' imprisonment - so all up - and making an order that makes you immediately eligible for parole.

• [6] Thereafter, her Honour imposed a number of other sentences in respect of the less serious offending.
• [7] The second allegation is that the respondent engaged in professional misconduct, in failing to notify the relevant authority of her conviction in respect of her convictions of a number of drug offences and, also, a traffic offence.
• [8] Under the heading "Submissions Regarding the Seriousness of the Conduct_"_, the applicant submitted:

(a) the conduct that is the subject of the referral is undoubtedly serious;

(b) the respondent pleaded guilty to and was convicted of 30 criminal charges, including eight serious drug charges, although such conduct did not occur in the course of the respondent carrying out her professional nursing;

(c) that behaviour demonstrated poor decision-making and a significant departure from the standards expected of a practitioner in the respondent's position; and

(d) that conduct occurred over a protracted period of time and became more serious across time.

• [9] The respondent's failure to notify the applicant of the conviction on 15 December 2021 and subsequent charges is an aggravating feature.
• [10] In that regard, reference was made to the decision in the Nursing and Midwifery Board of Australia v Smith,[1] where it was observed:

For the public to be protected and professional standards upheld, it is imperative that any health professional who is charged with a criminal offence notifies their relevant professional registration Board. Without such notification the relevant professional Board is not in the position to take steps to protect the public and maintain professional standards.

• [11] It was further submitted on behalf of the applicant that the respondent's conduct was substantially below the standard expected of a practitioner such as the respondent, a nurse, who is expected to act with honesty at all times, maintain standards of personal conduct, and not engage in unlawful behaviour; and further, that her conduct was inconsistent with the practitioner being a fit and proper person to hold registration.
• [12] Under the heading "The Parties' Position Regarding Orders and Appropriate Sanction", it was submitted:

The parties advance a joint position in respect of the following orders and appropriate sanction:

(a) with respect to allegation 1, the respondent be found to have engaged in professional misconduct within the meaning of the definition in paragraphs (a), (b) & (c) of section 5 of the National Law;

(b) with respect to allegation 2, the respondent be found to have engaged in professional misconduct within the meaning of the definition in paragraph (b) of section 5 of the National Law;

(c) the respondent be reprimanded;

(d) the respondent's registration be cancelled;

(e) the respondent be disqualified from applying for registration as a registered health practitioner for a period of four years; and

(f) the respondent be prohibited from providing any health services (whether or not a registration is required for that service) until such time as the respondent is re-registered.

• [13] It goes without saying that for the respondent to be re-registered as a nurse, she would be required to provide evidence that her mental health issues, including those associated with substance abuse, have been satisfactorily addressed.
• [14] It is then submitted as follows:

It is submitted that the agreed position between the parties ought to be accepted as whilst it remains the duty of the Tribunal to consider the facts and make relevant findings and determinations, 'it is appropriate for the Tribunal to give weight to and take into account the agreement between the parties as a highly relevant and important matter'.

This Tribunal has found that departure from a proposed sanction agreed between the parties ought not take place unless it falls outside the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.

• [15] On 13 September 2024, the respondent sent an email to the registry of this Tribunal which, relevantly, said:

Good morning.

Please, see below my position regarding the above proceedings.

1. I will not be filing my own submissions.

2. I admit the allegations contained in the applicant's submissions.

3. I agree with the applicant's characterisation of the conduct.

Kind regards

[XIW].

• [16] That email makes no specific mention of the respondent agreeing to the proposed orders and sanctions. The brief to the Tribunal contained some 564 pages and, yet the Tribunal was not directed to any material where the respondent expressly agreed to the orders and sanctions proposed.
• [17] In circumstances where the respondent has read the applicant's submissions, which include the proposed sanctions and orders, it might be tempting to proceed on the basis that it could be inferred that the respondent agreed to them.
• [18] However, given the severity of the outcome concerning the respondent, it is considered that the Tribunal ought to proceed in a conservative or cautious manner. Accordingly, the Tribunal will proceed on the basis that the orders and sanctions sought are those considered to be appropriate by the applicant, and that the respondent has not advanced any objections to those orders and sanctions, nor has she proposed any alternatives.
• [19] That said, by reference to the seriousness of the misconduct on the part of the respondent, and to the precedents to which the Tribunal was referred, it is considered that the relief sought by the applicant is appropriate. In this regard, it must always be borne in mind that disciplinary proceedings such as these are protective and not punitive in nature, and that the paramount principle is the protection of the health and safety of the public.[2]
• [20] The Tribunal's attention was directed to a number of cases. These included: Nursing and Midwifery Board of Australia v Brereton ('Brereton');[3] Nursing and Midwifery Board of Australia v Buckland (Review and Regulation) ('Buckland');[4] Nursing and Midwifery Board of Australia v Bezmylov ('Bezmylov');[5] Health Ombudsmen v Henson ('Henson');[6] and Health Complaints Commission v Wood.[7]
• [21] The facts and circumstances involved in the Henson involved far less serious conduct than that which the Tribunal is concerned with here. Arguably, the two most comparable cases are that of Brereton and Buckland.
• [22] In Brereton, the practitioner was charged with:

(a) two counts of possessing methylamphetamine;

(b) one count of possessing cannabis;

(c) one count of producing methylamphetamine;

(d) six counts of possession of either substances, items or instructions relevant to producing a dangerous drug;

(e) summary offences relating to possession of a pipe, a replica pistol and silencer, fireworks and other property being reasonably suspected as being tainted by crime; and

(f) one count of obstructing police.

• [23] In that case, the practitioner was precluded from applying for registration for four years, and only after conditions fulfilled relating to further education and a health assessment had been completed.
• [24] In Buckland, the practitioner was found guilty of criminal offences including nine offences that related to prescription drugs, drug paraphernalia and pharmacy certificates; four offences relating to drugs found at her premises; and falsifying medical certificates. The practitioner also failed to declare and inform the Australian Health Practitioner Regulation Agency ('Ahpra') of the charges and findings of guilt. In that matter, the Tribunal considered the practitioner's:

... lack of candour and unwillingness to take responsibility for her actions, demonstrated lack of insight into the seriousness of her conduct and the fact that no material had been provided that suggested she had undergone rehabilitation or reflected on the seriousness of the conduct, in particular, how it reflects on the profession...[8]

• [25] In that case, the Tribunal found the conduct to be professional misconduct and ordered that her registration be cancelled and that she be disqualified from applying for registration for a period of three years.
• [26] In Bezmylov, the practitioner admitted to engaging in professional misconduct through illicit drug use, including being affected whilst performing duties as a nurse, as well as the sale and distribution of illicit drugs. One would ordinarily imagine that that conduct would result in a relatively lengthy period of disqualification and cancellation. At the end of the day though, in that matter, the Tribunal decided that the practitioner ought to be disqualified for applying for a period of two years and six months. In reaching that conclusion though, it appears that the Tribunal gave particular consideration to the practitioner's steps in addressing his substance abuse. Here, the Tribunal has not been taken to any material demonstrating any material rehabilitation or attempts thereof on the part of the respondent.
• [27] On balance, having regard to the seriousness of the conduct and the cases to which the Tribunal has referred, the Tribunal agrees that the appropriate orders and sanctions be as follows:
  1. With respect to allegation 1, pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) ('National Law'), the respondent has behaved in a way that constitutes professional misconduct as defined by subparagraphs (a), (b) and (c) of that term in s 5 of the National Law.
  2. With respect to allegation 2, pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct as defined by subparagraph (a) 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(2)(e) of the National Law, respondent's registration is cancelled.
  5. 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 years from the date of this order.
  6. Pursuant to s 196(4)(b) of the National Law, the respondent is prohibited from providing any health service (whether or not a registration is required for that service) until such time as the respondent is re-registered.

[1] [2016] SAHPT 4 [22].

[2] It would appear that the respondent was not a practising nurse at the time: Hearing Bundle, page 552 [38].

[3] [2011] QCAT 578.

[4] [2023] VCAT 240.

[5] [2019] SACAT 68.

[6] [2020] QCAT 72.

[7] [2020] NSWCATOD 60.

[8] [2023] VCAT 240 at [126].