Health Ombudsman v Baumann - [2021] QCAT 68

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Baumann [2021] QCAT 68

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

NARELLE JOY BAUMANN

(respondent)

APPLICATION NO/S:

OCR112-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 March 2021

HEARING DATE:

10 March 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Ms H Barker
Ms M Barnett
Mr P Davies CBE

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

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was an endorsed enrolled nurse – where the respondent stole drugs from her place of employment and made false entries in medicine registers – where the respondent pleaded guilty to one count of stealing as a servant and one count of false entry in a record – whether such conduct should be characterised as professional misconduct – what sanction should be imposed for professional misconduct – where parties submit agreed position on characterisation of conduct and sanction

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5, s 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Craig v Medical Board of South Australia (2001) 79 SASR 545

Psychology Board of Australia v Cameron [2015] QCAT 227

REPRESENTATION:

Applicant:

Office of the Health Ombudsman

Respondent:

Hall Payne Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

This is a referral of a health service complaint against Narelle Joy Baumann (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of the Proceedings on behalf of the Health Ombudsman (applicant). The applicant alleges, in the referral filed 30 April 2020, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The respondent admits, in her response to the referral, that she engaged in the conduct in question.
In this matter, the parties have jointly filed and rely upon a Statement of Agreed Facts, and there are no factual issues in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.
Background
The respondent is 51 years old and was aged 47 and 48 years old at the time of the conduct.
The respondent was first granted registration as an endorsed enrolled nurse on 1 July 2009 and from that time worked as an endorsed enrolled nurse at the Bundaberg Base Hospital until 24 April 2018, when she resigned her employment in response to an investigation into her conduct the…

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: [2021] QCAT 68
Decision Date

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against the respondent, Ms Baumann, for her professional misconduct involving the theft of prescription medication from the workplace. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the tribunal was whether the respondent's conduct amounted to professional misconduct, and if so, what the appropriate sanction should be.

In determining whether the respondent's actions constituted professional misconduct, the tribunal considered the respondent's repeated theft of controlled substances over a period of several months, despite being aware of the strict protocols governing the dispensing of such drugs. The tribunal found that the respondent's actions demonstrated a significant breach of trust and a disregard for the professional standards expected of a registered nurse. The tribunal also noted the respondent's guilty plea and the subsequent criminal conviction as aggravating factors. Given the agreed characterisation of the conduct as professional misconduct and the agreed appropriate sanctions, the tribunal did not need to extensively deliberate on the specific elements of misconduct.

The tribunal ordered that Ms Baumann's registration as an endorsed enrolled nurse be cancelled. This decision reflects the severity of the respondent's actions, which not only violated professional standards but also undermined the integrity of the healthcare system. The tribunal's decision was based on the agreed facts, the respondent's admissions, and the agreed sanctions.

Orders

Orders of the court

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Background

Background to the litigation

In this matter, the parties have jointly filed and rely upon a Statement of Agreed Facts, and there are no factual issues in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.Background The respondent is 51 years old and was aged 47 and 48 years old at the time of the conduct. The respondent was first granted registration as an endorsed enrolled nurse on 1 July 2009 and from that time worked as an endorsed enrolled nurse at the Bundaberg Base Hospital until 24 April 2018, when she resigned her employment in response to an investigation into her conduct the subject of this referral. The respondent suffered a work injury in 2013 and suffered chronic moderate pain thereafter. As a result she was prescribed Endone and other analgesia such as Panadeine Forte and Tramadol. She had been taking these medications to manage her pain for a long period of time. These were prescribed by her treating practitioners up to and during the time of the conduct subject to the referral.Conduct The respondent worked in the Emergency Department of the Bundaberg Base Hospital. In the often busy work environment of the Emergency Department, strict procedures for the dispensing of restricted drugs were sometimes not followed by nursing staff. For example, on occasions, the respondent was not accompanied to a patient’s bedside by a registered nurse and supervised when dispensing Schedule 8 drugs. A work culture of trust in fellow nursing staff was relied upon to fill the gaps in adherence to strict requirements of supervision of staff. The respondent abused the trust of her employer and fellow nursing staff and took advantage of the lack of adherence to strict requirements of supervision by misappropriating Schedule 8 medication for her own use. On 9 March 2018, the Nurse Unit Manager of the Emergency Department became aware that the Schedule 8 medication, Endone, had been signed for but not dispensed to a patient by the respondent. An internal investigation identified discrepancies between medication log books and patient records and revealed that the respondent, between October 2017 and late March 2018, had stolen Endone from Emergency Department supplies. The respondent had made fraudulent entries in numerous Schedule Medicine Registers during the same period. The theft occurred on 18 occasions with the respondent stealing a total of 48 x 5mg tablets of Endone. There is no evidence, and it is not contended by the applicant, that any patient was consequently deprived of necessary analgesia by the respondent’s diversion of drugs to her own use. On 18 December 2019, the respondent pleaded guilty in the Magistrates Court at Bundaberg to one count of false entry in record, contrary to section 430(a) of the Criminal Code 1899 (Qld) (Criminal Code) and one count of stealing by clerks and servants, contrary to sections 391 and 398.6 of the Criminal Code. The respondent was sentenced by a 15 month probation order including conditions for medical, psychiatric and/or psychological assessment and treatment and drug and alcohol testing. No convictions were recorded.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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