Health Ombudsman v Montalvo

[2020] QCAT 317

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Montalvo  [2020] QCAT 317

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

ISABEL CONCEPCION MONTALVO

(respondent)

APPLICATION NO/S:

OCR214-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 September 2020

HEARING DATE:

3 September 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Dr Kim Forrester
Ms Carolyn Ashcroft

Mr Stephen Lewis

ORDERS:

1.   The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct. 

2.   The Tribunal reprimands the respondent.

3.   The respondent is disqualified from applying for registration as a health practitioner for a period of six months from the date of this order.

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

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – stealing drugs from employer – criminal convictions – registration not renewed - sanction

Health Ombudsman Act 2013 s 104, s 107

Health Ombudsman v Macdonald [2016] QCAT 473
Health Ombudsman v Mullins [2019] QCAT 339
Health Ombudsman v NPT [2020] QCAT 267
Health Ombudsman v Tu [2020] QCAT 91
Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403
Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249

APPEARANCES & REPRESENTATION:
Applicant:	Ms N Townsend of the Office of the Health Ombudsman
Respondent:	Not appearing

REASONS FOR DECISION

1. This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with that Act, I am sitting with assessors Dr Forrester, Ms Ashcroft and Mr Lewis.[1] The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that the respondent engaged in professional misconduct, in that she took a quantity of Schedule 8 pain killing medication from her employer.

   [1]Health Ombudsman Act 2013 s 126; see s 127 for their function.

2. The applicant has provided written submissions to the Tribunal, and evidence in the form of a statement of a Senior Legal Officer, which exhibits a number of relevant documents.  The respondent, who has not been legally represented, has not taken any part in these proceedings, although she did initiate the proceedings by self-notification. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.

3. The information before the Tribunal may be summarised as follows:  The respondent was born in 1981 and is now 39. She was first registered as a Registered Nurse in 2003. At the relevant time she was employed as a Registered Nurse at a hospital in a county area, where she had worked for about one year. On 9 October 2018 she consulted a local doctor about a dental infection of the lower jaw, which was very painful.  She was referred to the hospital where she was given intravenous antibiotics and Endone for pain relief, and had teeth extracted by a visiting dentist.

4. On seven separate occasions over a ten day period later in October 2018 she took a total of six ampules of morphine and two ampules of fentanyl, of various sizes. I assume she consumed the drugs herself. She made false entries in the drug records of the hospital, but the conduct came to light on 27 October when a discrepancy was identified in those records, and the matter was investigated further.  On 29 October the respondent was stood down, and the police were notified the next day.

5. As a result the respondent was charged with seven counts of stealing by clerks and servants, seven counts of possession of dangerous drugs and seven counts of making a false entry in a record. She notified the applicant of the charges against her on 21 November 2018. A more detailed notification by the hospital was provided on 26 November 2018. On 12 February 2019 the respondent saw a doctor again, with severe anxiety and depression, and was prescribed antidepressants.

6. On 25 March 2019 she pleaded guilty to the first of the 21 charges in a Magistrates Court.[2]  On that charge, she was sentenced to three months’ imprisonment, suspended forthwith with an operational period of nine months. References from two colleagues were presented to the Court, which spoke well of her work as a nurse. After this, her employment at the hospital was terminated. The respondent failed to renew her registration in June 2019, and is now unregistered. The applicant referred the proceeding to the Tribunal on 26 June 2019.

   [2]Verdict and Judgment Record, Exhibit NJT06, records a plea of guilty to each of 21 charges, but also, in the verdict/result column, shows a plea of guilty only to the first charge, with the others “no evidence to offer”.  I infer that a plea to the first charge only was accepted by the prosecution.    

7. That the respondent committed the first offence with which she was charged is proved by the fact of the conviction of that offence. The Verdict and Judgment Record recorded a plea of guilty to all charges, which is an admission of the facts constituting all the offences, but this may have been an error, in view of the outcome. The applicant has provided material from the hospital investigation, in the form of copies of drug records, and statements from other staff on duty at the relevant times, which is to the effect that the drugs records had not been signed by them for these drugs, and that the patients to whom they were attributed were not prescribed these drugs. The respondent had claimed one of the ampules was broken accidently and discarded, but the investigation turned up no supporting evidence, and a search of the sharps bin where the broken ampule was said to have been discarded did not reveal any remains of it. In the circumstances, the Tribunal accepts that the applicant has proved, to the appropriate standard, that the respondent did on each of the seven occasions, take Schedule 8 drugs from the hospital supply, and made a false entry in the drug records in an attempt to cover her tracks. The inference is that she took these drugs in order to consume them, and did so.

8. The applicant alleged that there had been a prior instance of similar conduct, in that in 2016 the respondent had self-medicated with a Ranitidine tablet from ward stock while working a shift, to treat reflux and vomiting. She had been prescribed that medication but had run out. She had been cautioned by the Board for this conduct, which did involve theft, although it was at a very low level, and it was appropriate medication for a real medical condition. In itself this was a minor matter, but the fact that the present conduct occurred after she had been cautioned in this way is an aggravating feature for this matter.

9. The applicant alleged that the respondent’s conduct amounted to professional misconduct.  I am aware of the definition of professional misconduct in s 5 of the National Law; the applicant relied on paragraphs (a) and (c) of the definition. There have been numerous earlier decisions of the Tribunal where such conduct has been characterized as professional misconduct. For example, in Health Ombudsman v Macdonald [2016] QCAT 473 the respondent was a registered nurse who stole 11 boxes of a Schedule 4 medication from her employer. This behaviour was said by the Tribunal to represent a significant breach of trust and an abuse of position, which necessarily undermined the confidence that the public must retain in the profession. A finding of professional misconduct was made, and the respondent’s registration was suspended for 6 months. That was an isolated incident, it did not involve Schedule 8 drugs, and the medication was obtained for the use of a relative. The Hon J B Thomas QC, who constituted the Tribunal, said at [27]:

   The stealing of the prescription drugs from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession. It is simply conduct that nurses must not engage in. Such conduct necessarily undermines the confidence that the public must retain in the profession.[3]

   Other examples are referred to below.

   [3]See also Health Ombudsman v Jamieson [2017] QCAT 172 at [27].

10. As the applicant pointed out in submissions, the conduct was a breach of the Code of Conduct for Nurses, issued by the Nursing and Midwifery Board of Australia. This is something which can be taken into account under the National Law.[4] In all the circumstances, on the material in the hearing brief, the Tribunal decides that the respondent behaved in a way that constituted professional misconduct.

    [4]National Law s 41. 

11. In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence,[5] the maintenance of professional standards and the maintenance of public confidence. Abuse of Schedule 8 drugs is a serious matter, and the element of dishonesty, in taking the drugs and in making false entries in the records, is significant. Although the offending occurred over a relatively short period, it was not an isolated incident, and the drugs taken were high level opiates. Insight and remorse on the part of the respondent are also relevant to the assessment of the risk to the public.[6] There is little evidence of these here, although she did self-notify when charged, and the plea of guilty to the criminal charge does suggest remorse, as does the subsequent presentation to the doctor. It is also relevant that presumably the respondent has not in fact practiced as a nurse since October 2018, so there was a de facto suspension of her registration for about eight months prior to her ceasing to be registered, fourteen months ago.[7]

    [5]See Attorney-General v Bax [1999] 2 Qd R 9 at 17, concerning analogous provisions involving a legal practitioner.

    [6]Medical Board of Australia v Blomeley [2018] QCAT 163 at [142].

    [7]Psychology Board of Australia v GA [2014] QCAT 409 at [39], Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [21].

12. The applicant referred to Macdonald (above) and Jamieson (above), neither of which involved Schedule 8 drugs, and each of which involved a single theft. In Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403 a nurse took a vial of morphine and a small number of Oxycontin tablets from her workplace, the latter from a patient’s Webster pack, an aggravating feature. She was not registered and had not worked as a nurse for two and a half years, and was disqualified for an additional six months.

13. In Health Ombudsman v Antley [2016] QCAT 472 a nurse stole blank authority prescription forms from her employer, and used them to obtain Schedule 8 drugs, to self-medicate a real and painful medical condition. She had voluntarily cancelled her registration, and did not participate in the hearing, having deteriorating mental health issues, not relied on as an excuse: [40].[8] The Hon J B Thomas QC, who constituted the Tribunal, said at [46] that a large number of cases indicated a range of six months to three years for cancellation, suspension or postponement as a result of such conduct. She was disqualified for nine months, on top of a period of over seven months since she cancelled her registration.

    [8]It was said this would be a matter for the registering authority if she reapplied for registration. 

14. In Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249 a nurse had taken prescription forms and used them to obtain Oxazepam, and had stolen a number of ampules of a restricted drug, Propofol; she has also attempted to steal half a tablet of Oxazepam. She had not renewed her registration. A preclusion period of six months was imposed, on top of a period of three years without registration. The behaviour was aggravated by lack of frankness during the investigation, but there were mitigating circumstances.

15. In Health Ombudsman v Mullins [2019] QCAT 339 the respondent nurse, who had various health problems, stole some prescription forms and used them to obtain opiates. When this came to light she was dealt with in criminal proceedings, and lost her employment. Her registration was subject to various conditions, being managed by AHPRA, and she had not practiced as a nurse for almost three years. She demonstrated remorse and insight. This was found to be professional misconduct, and she was reprimanded. The applicant submitted that there were more significant mitigating circumstances in this matter.

16. In Health Ombudsman v Tu [2020] QCAT 91 the practitioner, an enrolled nurse, had been convicted of stealing a vial of diazepam from the hospital where he worked, but he had also been convicted of possession of dangerous drugs on three occasions, including on one occasion a significant quantity of methylamphetamine, and had not engaged with the regulatory authorities, or the proceeding. His registration had been suspended, and later not renewed. A preclusion period of two years was imposed, on top of two years and seven months he had not been working as a nurse already. The involvement with illegal drugs gave this matter a more sinister aspect.

17. In Health Ombudsman v NPT [2020] QCAT 267 a registered nurse had taken a large quantity of drugs, mostly on Schedule 8, from his work over a period of two months. He had a problem with opioid dependence, and had not engaged with the Tribunal, except to say that he accepted the allegations, and what sanction was imposed. He was unregistered, and a preclusion period of six months was imposed, on top of two and a half years out of employment as a nurse.[9]

    [9]In that decision I referred to two earlier decisions where no preclusion period was imposed, because of the length of time the practitioner had been not practicing:  Health Ombudsman v McGill [2019] QCAT 399 (4 years) and Health Ombudsman v CSM [2020] QCAT 55 (2 years).

18. The applicant submitted that the Tribunal should reprimand the respondent, and that approach is consistent with the earlier decisions. In addition, it was submitted that the applicant should be disqualified from registration for a period of twelve to eighteen months, in reliance in particular on Antley (above). In Antley the Tribunal approved a proposed disqualification period which amounted to sixteen months, before deducting the period since that respondent had been deregistered. In this case, the respondent has already been deregistered for fourteen months, and there was the earlier period of eight months when she was not working. The applicant submitted that the preclusion period sought should be on top of the time away from the profession already, but I consider that that would produce a total period of preclusion which was excessive in the light of the earlier decisions. Because of the earlier caution, this matter is more serious than Antley. A further period of six months would mean a period of twenty months without registration, and twenty-eight months away from the profession, which I consider reasonable in all the circumstances.

19. Accordingly, the decision of the Tribunal is:

    1.     The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct.

    2.     The Tribunal reprimands the respondent.

    3.     The respondent is disqualified from applying for registration as a health practitioner for a period of six months from the date of this order.

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