Health Ombudsman v Armstrong - [2018] QCAT 382

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Armstrong [2018] QCAT 382

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

MAREE JOSEPHINE ARMSTRONG

(respondent)

APPLICATION NO/S:

OCR050-16; OCR134-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 November 2018

HEARING DATE:

22 March 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President

Assisted by:
Mr J McNab
Ms N Brook
Mr G Lawrence

ORDERS:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Ms Armstrong has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong’s registration is cancelled, effective from 14 January 2019.

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong is disqualified from applying for registration for a period of two years, commencing on and from 14 January 2019.

4.   The Health Ombudsman is to file in the tribunal and serve on Ms Armstrong any application for costs and written submissions in support by 4.00 pm on 21 December 2018.

5.   Ms Armstrong is to file in the tribunal and serve on the Health Ombudsman any written submissions in response to any such application by 4.00 pm on 18 January 2019.

6.   Any application for costs will be determined on the papers.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the practitioner was charged and convicted of obtaining a financial advantage for self relating to overpayments from Centrelink which arose due to the practitioner underreporting her income – where, as a result of that conviction, the practitioner breached a peace and good behaviour bond – where the practitioner failed to disclose the charges and convictions to the Nursing and Midwifery Board of Australia – where the practitioner failed to declare that there had been a change in her criminal history on her application for registration renewal – where the practitioner provided a fraudulent medical certificate in support of an application to vacate a compulsory conference – whether the practitioner engaged in professional misconduct or unprofessional conduct – whether the registration of the practitioner should be cancelled

CONSTITUTION – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RECOGNITION OF STATE LAWS, RECORDS AND JUDICIAL PROCEEDINGS – whether the Health Ombudsman is a valid entity under the Australian Constitution

Australian Constitution, s 106, s 107, s 109
Criminal Code Act 1995 (Cth), s 135
Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5, s 130

Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v Barber [2017] QCAT 431
Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691
Nursing and Midwifery Board of Australia v Williams [2013] QCAT SAHPT 1
Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338
Nursing and Midwifery Board v Roos [2016] QCAT 231

APPEARANCES & REPRESENTATION:

Applicant:

L J Marshall of the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCAT 382
Decision Date: 29 November 2018

CaseChat Overview and Summary

In the matter of Health Ombudsman v Armstrong, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the respondent, Ms Armstrong, engaged in professional misconduct warranting disciplinary action and cancellation of her nursing registration. The Health Ombudsman brought charges against Ms Armstrong based on her conviction for obtaining a financial advantage by underreporting her income to Centrelink, her failure to disclose these charges and convictions to the Nursing and Midwifery Board of Australia, and her failure to declare changes to her criminal history on her application for registration renewal. Additionally, Ms Armstrong provided a fraudulent medical certificate in support of an application to vacate a compulsory conference. The central issue before the Tribunal was whether these actions constituted professional misconduct or unprofessional conduct under the Health Practitioner Regulation National Law (Queensland).

The Tribunal found that Ms Armstrong's actions did indeed constitute professional misconduct. Firstly, her conviction for obtaining a financial advantage by underreporting her income and subsequently failing to comply with the conditions of a peace and good behaviour bond demonstrated a clear breach of the ethical standards expected of a registered nurse. Furthermore, her failure to disclose these charges and convictions to the Nursing and Midwifery Board, as well as her dishonesty in updating her registration application, further evidenced unprofessional conduct. Finally, providing a fraudulent medical certificate was a deliberate act of deception that undermined the integrity of the registration process. Consequently, the Tribunal concluded that these actions warranted the cancellation of Ms Armstrong's registration.

In light of the findings, the Tribunal ordered the cancellation of Ms Armstrong’s registration, effective from 14 January 2019, and disqualified her from applying for registration for two years from that date. The Tribunal also directed that the Health Ombudsman file any application for costs and written submissions in support by 4.00 pm on 21 December 2018, with Ms Armstrong to respond by 4.00 pm on 18 January 2019. Any application for costs was to be determined on the papers.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Ms Armstrong has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong’s registration is cancelled, effective from 14 January 2019.

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong is disqualified from applying for registration for a period of two years, commencing on and from 14 January 2019.

4. The Health Ombudsman is to file in the tribunal and serve on Ms Armstrong any application for costs and written submissions in support by 4.00 pm on 21 December 2018.

5. Ms Armstrong is to file in the tribunal and serve on the Health Ombudsman any written submissions in response to any such application by 4.00 pm on 18 January 2019.

6. Any application for costs will be determined on the papers.

Background

Background to the litigation

Pursuant to s 104 of the HO Act, QCAT is the responsible tribunal with jurisdiction to hear and decide the matters.Background Facts Ms Armstrong was first registered with the Nursing and Midwifery Board (the Board) as a nurse on 26 February 2004 and currently holds general registration as a registered nurse. Ms Armstrong commenced working for Queensland Health in varying roles from 2000. Ms Armstrong worked as a registered nurse at the Rockhampton Base Hospital from 15 March 2004. At the time of the conduct the subject of the first referral, Ms Armstrong was working in the coronary care unit at that hospital. Ms Armstrong was incarcerated for a 10-week period between 14 August 2013 and 23 October 2013. She was suspended with pay by Queensland Health on 29 October 2013 and was suspended without pay on 25 November 2013 pending the outcome of her criminal history check. Ms Armstrong resigned on 9 December 2013. On 1 November 2014, Ms Armstrong commenced working as a registered nurse with Blue Care, working at its Capricorn Aged Care Facility, Yeppoon. As at the date of hearing, Ms Armstrong continues to work in that position. The First Referral (OCR050-16) Four charges are the subject of the first referral. The charges arise from Ms Armstrong having been convicted of offences of obtaining a financial advantage under s 135 of the Criminal Code Act 1995 (Cth). Those offences resulted from a failure by Ms Armstrong to fully declare income from her employment with Queensland Health while receiving Parenting Payment single benefits from Centrelink. The four charges can be summarised as:(a)Charge 1 – Ms Armstrong was convicted in the Magistrates Court, on her own plea of guilty, on 14 August 2013, for the offence of obtaining a financial advantage for self in the period 16 August 2007 to 17 November 2010 resulting in a total overpayment of $22,560.70;(b)Charge 2 – The conviction of Ms Armstrong for having received the overpayment referred to in charge 1 resulted in a failure by her to comply with a condition of discharge or release imposed as a result of a previous conviction, namely, a peace and good behaviour bond;(c)Charge 3 – Contrary to s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law), Ms Armstrong failed to notify the Board that:(i) she had been served with a complaint and summons on 23 March 2012 charging her with the offences of receiving a financial benefit for self; and(ii) she had been convicted and sentenced in the Magistrates Court on 14 August 2013; and(d)Charge 4 – In completing her online renewal of registration application on 21 May 2012 and 26 June 2014, contrary to s 135 of the National Law, Ms Armstrong lied in relation to changes to her criminal history arising from the service of the complaint and the convictions in the Magistrates Court. The previous conviction referred to in charge 2 was for the same offence of receiving overpayments from Centrelink. On 5 October 2007, Ms Armstrong had been convicted, on her own plea of guilty, of receiving overpayments in an amount of $9,674.42 in the period 29 April 2004 to 12 October 2005. For that offending, Ms Armstrong had been released on a recognisance of $1,000.00 on condition that she be of good behaviour for two years. Ms Armstrong was also required to pay reparation of $7,849.63[1] and a pecuniary penalty of $750.00. At the sentencing hearing on 5 October 2007, the Director of Public Prosecutions referred to Ms Armstrong having previously received overpayments from Centrelink totalling $1,926.00 between 1997 and 2005, all of which had been repaid.[1]By the date of sentencing, this amount together with the payments already made would result in the repayment of the full amount of $9,674.42.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Armstrong [2018] QCAT 382
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
MAREE JOSEPHINE ARMSTRONG (respondent)
APPLICATION NO/S:	OCR050-16; OCR134-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	29 November 2018
HEARING DATE:	22 March 2018
HEARD AT:	Brisbane
DECISION OF:	Judge Sheridan, Deputy President Assisted by: Mr J McNab Ms N Brook Mr G Lawrence
ORDERS:	1. Pursuant to s 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal finds Ms Armstrong has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 107(3)(e) of the *Health Ombudsman Act* 2013 (Qld), Ms Armstrong’s registration is cancelled, effective from 14 January 2019. 3. Pursuant to s 107(4)(a) of the *Health Ombudsman Act* 2013 (Qld), Ms Armstrong is disqualified from applying for registration for a period of two years, commencing on and from 14 January 2019. 4. The Health Ombudsman is to file in the tribunal and serve on Ms Armstrong any application for costs and written submissions in support by 4.00 pm on 21 December 2018. 5. Ms Armstrong is to file in the tribunal and serve on the Health Ombudsman any written submissions in response to any such application by 4.00 pm on 18 January 2019. 6. Any application for costs will be determined on the papers.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the practitioner was charged and convicted of obtaining a financial advantage for self relating to overpayments from Centrelink which arose due to the practitioner underreporting her income – where, as a result of that conviction, the practitioner breached a peace and good behaviour bond – where the practitioner failed to disclose the charges and convictions to the Nursing and Midwifery Board of Australia – where the practitioner failed to declare that there had been a change in her criminal history on her application for registration renewal – where the practitioner provided a fraudulent medical certificate in support of an application to vacate a compulsory conference – whether the practitioner engaged in professional misconduct or unprofessional conduct – whether the registration of the practitioner should be cancelled CONSTITUTION – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RECOGNITION OF STATE LAWS, RECORDS AND JUDICIAL PROCEEDINGS – whether the Health Ombudsman is a valid entity under the Australian Constitution Australian Constitution, s 106, s 107, s 109 Criminal Code Act 1995 (Cth), s 135 Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107 Health Practitioner Regulation National Law (Queensland), s 5, s 130 Health Ombudsman v Antley [2016] QCAT 472 Health Ombudsman v Barber [2017] QCAT 431 Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691 Nursing and Midwifery Board of Australia v Williams [2013] QCAT SAHPT 1 Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338 Nursing and Midwifery Board v Roos [2016] QCAT 231
APPEARANCES & REPRESENTATION:
Applicant:	L J Marshall of the Office of the Health Ombudsman
Respondent:	Self-represented