Health Ombudsman v Edwards - [2021] QCAT 305

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Edwards [2021] QCAT 305

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MARGOT LOUISE EDWARDS

(respondent)

APPLICATION NO/S:

OCR366-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
Ms F Banwell,
Ms M Gunn
Mr M Halliday

ORDERS:

1.       The conduct of the respondent in the respect alleged in the referral was professional misconduct.

2.       The respondent is reprimanded.

3.       The suspension of the registration of the respondent imposed by the applicant on 29 May 2020 is lifted.

4.       The parties bear their own costs of this proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – stealing schedule 8 tablet from employer – failure of patient care – cooperation – mitigating factors – away from nursing for 18 months – sanction

Health Ombudsman Act 2013 s 103(1)(a), s 104, s 107

Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v CSM [2020] QCAT 55
Health Ombudsman v Jamieson [2017] QCAT 172
Health Ombudsman v Macdonald [2016] QCAT 473
Health Ombudsman v Montalvo [2020] QCAT 317
LCK v Health Ombudsman [2020] QCAT 316
Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92

APPEARANCES & REPRESENTATION:

Applicant:

V Dutta, of the Office of the Health Ombudsman

Respondent:

D W Dickie

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 by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104. Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Ms F Banwell, Ms M Gunn and Mr M Halliday in accordance with the Act.[1]
[1]Health Ombudsman Act 2013 (Qld), s 126. For their function, see s 127.
The respondent was at the relevant time a registered nurse, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, in that she has been convicted of one count of stealing contrary to the Criminal Code s 398. The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is legally represented, and has provided submissions in writing and filed two affidavits. The parties have provided an agreed statement of facts for the proceeding.

Background

From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows. The respondent was born in July 1961, and is now 60 years old. She was first registered as a registered nurse in 1982, and at the relevant time…

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 305
Decision Date

CaseChat Overview and Summary

This matter involves a referral by the Health Ombudsman against the respondent, Margot Louise Edwards, a registered nurse. The referral alleges professional misconduct based on a conviction of stealing a Schedule 8 drug from her employer, which amounted to a breach of trust and patient care. The Tribunal was required to determine whether the conduct amounted to professional misconduct and to decide an appropriate sanction if so. The Tribunal concluded that the conduct did amount to professional misconduct, given the misuse of employer property, the involvement of a controlled drug, and the failure in patient care. In deciding an appropriate sanction, the Tribunal considered the need to protect public safety, the purposes of disciplinary proceedings, and relevant factors such as insight, remorse, and the respondent's fitness to practice.

After weighing the evidence and submissions, the Tribunal decided that the respondent should be reprimanded and that the suspension of her registration imposed by the applicant should be lifted. The Tribunal found that the eighteen months the respondent had already been away from nursing, most of which was due to the suspension of her registration, was a sufficient sanction given the circumstances. The Tribunal also noted the respondent's remorse, her completion of relevant continuing professional development, and the resolution of her mental health issues as mitigating factors. The Tribunal concluded that the respondent's previous good record, the isolated nature of the incident, and the significant personal costs she had already faced were sufficient to deter her from any future misconduct. The Tribunal therefore lifted the suspension of the respondent's registration and ordered that she be reprimanded. Both parties were ordered to bear their own costs of the proceeding.

Orders