Health Ombudsman v Nickerson

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Nickerson [2025] QCAT 242

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

MATTHEW NICKERSON

(respondent)

APPLICATION NO/S:

OCR143-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 April 2025 (Ex tempore)

HEARING DATE:

9 April 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson
Assisted by:
Ms L Dyer
Ms C Elliot
Mr S Lewis

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

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

2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

3. There be no order as to costs.

APPEARANCES & REPRESENTATION:

Applicant:

C Lloyd, Legal Officer of the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

The respondent is a registered nurse. He is presently 27 years of age. He was awarded a Bachelor of Nursing from Queensland University of Technology in 2018. On 14 February 2019, he obtained registration as a registered nurse with the Nursing and Midwifery Board of Australia (‘Board’).
On 27 March 2024, the respondent was convicted on his own plea of guilty in the Ipswich Magistrates Court of one count of unlawful stalking, intimidation, harassment, and abuse pursuant to section 359E(1) of the Criminal Code Act1899 (Qld), for which he was sentenced to two years’ probation. A conviction was not recorded. In addition, the Court imposed a restraining order prohibiting the respondent from contacting the complainant.
The complainant was a young woman who was 25 years old at the relevant time. She and the respondent had previously gone to high school together but had not seen each other since 2015. Between 2015 and 2020, they would occasionally speak. For a short period, prior to the offending conduct, the respondent and the complainant engaged in mutual sexualised conversations via Snapchat, and the messages exchanged included sending of indecent images to each other.
On 15 August 2023, the respondent messaged the complainant via Facebook Messenger, advising that he had had a relationship breakdown. The complainant continued the conversation with him as she thought he would feel down and wanted someone familiar to talk to. He then escalated the conversation and made sexualised comments, and immediately started sending multiple videos and photographs of his erect penis. This made her feel uncomfortable, and she told the respondent to stop sending images and videos of himself masturbating in various positions.
Between 15 August 2023 and 23 August 2023, a period of approximately eight days, he:
(a)sent 26 indecent videos and photographs of himself masturbating or showing his erect penis;
(b)on 18 August 2023, he attempted to contact her on five occasions as he wanted to hear her voice as he masturbated;
(c)sent her over 70 messages in which he described various sexual activities that he wanted to engage in with her.
She did not permit any of this conduct, nor did she respond, and on 21 August 2023, she made a formal complaint to police and provided a statement. She told police that his conduct had made her feel uncomfortable and harassed. Thereafter, she blocked attempts by him to contact her via various messaging services. On 24 August 2023, he voluntarily attended at the police station and was interviewed. During that interview he made full admissions and stated to police he did not know why he had sent through all the photographs and videos, but he admitted that it was wrong and he should not have done so. He was charged with one count of stalking, and that was resolved by his plea of guilty on 27 March 2024.
At the relevant time, he was working as a clinical nurse at a Brisbane hospital service. Between 15 March 2024 and 17 June 2024, he was suspended with pay from his employment following his criminal conviction. Between 18 June 2024 and 13 September 2024, he was suspended without pay by the service. However, the service has since indicated that it will recompense him for that period.[1] It follows that he was out of practice as a nurse for a period of approximately six months, but he has never been formally suspended by any order of a regulator.
[1]Applicant’s Submissions, filed in the Tribunal 19 November 2024, 9 [63] (‘Applicant’s Submissions’).
Since the end of that period of suspension, he has returned to work at the service. The team leader of the Acute Care Team within the service has provided a reference dated 4 December 2024.[2] The team leader is fully aware of the matters before the Tribunal. He speaks very highly of the respondent, noting his clinical ability, positive attitude and collaborative approach to his work. He states that the respondent is a trustworthy, dedicated, self-reflective and motivated employee who has been working hard to effect positive change in his life, both at work and in his personal life. The team leader advises the Tribunal that he would have no hesitation recommending the respondent for re-employment or providing a job reference for other roles.
[2]Contained in the Hearing Brief, filed in the Tribunal 14 March 2025, 13-14 (‘HB’).
On 25 August 2023, the Office of the Health Ombudsman (‘OHO’) became aware of the police matter and commenced an investigation on 14 March 2024. After the respondent was sentenced, the OHO closed its investigation and referred the matter to the applicant Director, who filed a referral in these proceedings on 24 June 2024.[3] The respondent has always admitted the conduct that is the subject of the referral. Before us today, he has appeared personally. He is not legally represented, however, he has filed a thoughtful and helpful submission in which he states that he is aware of the serious nature of his conduct, and he acknowledges that his behaviour has caused harm to his former friend, which he deeply regrets.[4]
[3]Applicant’s Submissions (n 1) 3 [19]-[21].
[4]Respondent’s Submissions, filed in the Tribunal 23 February 2025, 1-3.

The characterisation of the conduct

It is accepted that the applicant bears the onus of proving both the relevant conduct and its characterisation by reference to the relevant definitions of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). By his conduct resulting in his plea of guilty in the Magistrates Court on 27 March 2024, the respondent has breached principle 1.2(c) of the Code of conduct for nurses (effective from 1 March 2018), and this is relevant as that instrument is admissible as evidence of what constitutes proper conduct by a health practitioner in disciplinary proceedings of this nature.[5]
[5]Health Practitioner Regulation National Law (Queensland) s 41.
The many cases referred to by Mr Lloyd in his balanced and fair submission on behalf of the applicant clearly establishes that conduct of this nature, resulting in a criminal offence being committed, falls clearly within limb (a) of the definition of professional misconduct in section 5 of the National Law.

Sanction

The principles underpinning this Tribunal’s jurisdiction to impose orders by way of sanction in relation to professional misconduct on the part of a registered health practitioner are well-known and need not be repeated.
In the context of this case, the most important principles are:
(a)that orders by way of sanction are to be made for the protection of the public and should not be punitive, that is by way of punishment;[6]
(b)such orders should be designed to ensure public confidence in the health system; and
(c)the maintenance of appropriate standards of conduct within the nursing profession.
[6]Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt (1968) 117 CLR 177; Medical Board of Australia v Dolar [2012] QCAT 271, [30].
In this case, both parties agree that a reprimand is appropriate to reflect the serious nature of the conduct. As has often been stated by this Tribunal, a reprimand is a significant sanction as it demonstrates to the public and the profession, by way of public notification of the reprimand on the National Register for up to five years, that such conduct is not tolerated.
The evidence before the Tribunal establishes that the respondent has taken significant and commendable steps to address the causes of his behaviour. At the time he committed the offence over an eight day period in August 2023, he was recently separated from his long term partner, who was then pregnant with their son. He was also drinking excessively and suffering a number of mental health impacts as a result of various factors relating to his role as a mental health nurse. At the time of his plea before the Magistrate in March 2024, where he was legally represented, he had reestablished his relationship with his partner, which continues, and their son had been born. He speaks in his submission of the joy of fatherhood, and the responsibilities that that entails.
He has been receiving treatment from a psychologist,[7] which continues, and he is back at work where, as I indicated earlier, he is highly regarded. He has filed in the proceedings a report relating to his ongoing engagement with Alcoholics Anonymous.[8] Additionally, as I have noted in his submission, he refers to a new sense of responsibility as a parent, and to his commitment to ensure that, in a highly stressful workplace, he has in place supports and practices to ensure that he is able to function professionally as a mental health nurse.
[7]Contained in HB (n 2) 11.
[8]Ibid 12.
Mr Lloyd has accepted that the Tribunal can take judicial notice of the fact that nurses with qualifications and experience in the mental health area are critical at a time when mental health disorders are much more prominent in the health services domain, and that there is a critical need for nurses with the respondent’s qualifications and experience. I agree with him that the respondent has shown very significant insight into the nature of his conduct, and has expressed remorse at the earliest possible time to the police, at the time of his sentence, and in his lengthy submission to the Tribunal.
The complainant did not provide a victim impact statement at the time of the sentencing hearing, but it can be accepted, as the respondent acknowledges and the Magistrate mentioned in his sentencing remarks, that his unwanted conduct towards her would have caused her real distress. For those reasons, I agree with Mr Lloyd that specific deterrence is not a significant factor here in relation to the issue of sanction. He submits that the issue of general deterrence is important to maintain public confidence in the nursing profession, which sits at the apex of the health system, and to deter other professionals from engaging in such conduct. Accordingly, Mr Lloyd submits that the Tribunal should suspend the respondent’s registration for a period of three months. I agree with him that the respondent’s period out of practice of approximately six months is relevant but should not equate to a de facto suspension.
By reference to a number of comparable decisions, Mr Lloyd submits that a period of six months suspension would have been appropriate, but that this period should be ameliorated to take into account his time out of practice. It is important that there be consistency in sanction outcomes across the disciplinary tribunals in the country by a way of upholding public confidence in the disciplinary process. Having said that, it is trite to note that no two cases are ever exactly comparable, and that there are always differences.
In my opinion, the case of Medical Board of Australia v Khoo(Review and Regulation) [2021] VCAT 67, involved objectively more serious conduct. In that case, a young male medical practitioner was convicted of stalking a female colleague who was also a medical practitioner. He was released on a good behaviour bond and ordered to pay a $2500 fine. Whilst at work, Dr Khoo secretly photographed a postal package addressed to the complainant to obtain her home address. He subsequently stole her housekeys and made a copy of them. Using these keys, Dr Khoo visited the complainant’s share house and gained entry. He went into her room and removed his trousers and underwear. He was confronted by the complainant’s housemate, who contacted the complainant, who immediately returned home from work. Dr Khoo ran from the house and he was seen by the complainant as she was driving home. He was arrested shortly thereafter.
The Tribunal in that case determined that the conduct was not isolated, and it involved planning and action leading up to Dr Khoo’s unlawful entry into the complainant’s house. The conduct constituted a gross breach of the complainant’s privacy and had put at serious risk the health and safety of the complainant and her housemate. His behaviour eroded the trust in his professional colleagues and public confidence in the medical profession.
In that case, the Tribunal considered that the need for general deterrence was greater than any need for specific deterrence. Dr Khoo, had originally been suspended by his employer for 14 months before returning to work. He had not worked for 11 months prior to the final hearing on the basis that he did not want to resign in anticipation of his registration being suspended. The original hearing in May 2020 had to be adjourned owing to the Covid-19 pandemic. In total, Dr Khoo had not worked for 25 months between the incident and the final hearing
It seemed to be accepted by the Tribunal, as was accepted on Dr Khoo’s behalf, that he was ashamed, embarrassed, and extremely remorseful. He had demonstrated insight by his plea of guilty and his engagement with the Medical Board of Australia. He had also engaged with a clinical psychologist and a mentor. The parties made a joint submission that a three month suspension was appropriate. The Tribunal agreed, however, having regard to the long delays in that matter, largely attributable to the Covid-19 pandemic, it found that such an order would be unjustly punitive rather than protective.
By far, the closest comparable referred to in Mr Lloyd’s submissions is the case of Nursing and Midwifery Board of Australia v VQK (Review and Regulation) [2022] VCAT 375 (‘VQK’). In that case, a registered nurse stalked his former partner over a two day period by sending 44 text messages threatening to kill himself and calling her derogatory names. He also logged into his former partner’s Facebook page and sent messages under her name to her family, friends and colleagues, suggesting that she was to blame for VQK’s mental health difficulties. The messages also attached intimate photos of the complainant.
He was sentenced to a 12 month good behaviour bond and ordered to receive treatment from a psychologist and to pay $1000 into a court fund. At the disciplinary hearing, he relied on two reports from his psychologist, who considered the risk of reoffending was low and that a suspension would detrimentally affect his wellbeing. Taking into account the effluxion of time between the offending conduct and the final hearing, a four and a-half year delay, the Tribunal considered that a six month suspension was appropriate. Although delay is not a factor here, nevertheless in the time since the conduct, the respondent has been suspended for a six month period but has now returned to practise as a registered nurse in the area of critical need in the health system, and as I have noted, in which he is highly regarded by his team leader.
A careful reading of the Tribunal’s reasons in VQK, however, do reveal some other very significant distinguishing features. As with VQK, the respondent here has no prior or subsequent disciplinary notifications. VQK, however, was a much more experienced health practitioner. At the time of his impugned conduct, he was in his fifties and had been registered as a nurse since 2003. Prior to that, he had been in the armed services, at which time he had commenced nursing studies. He was also a registered paramedic, being registered in 2019, which I infer was when the Paramedicine Board of Australia was formed. He was much older and far more experienced than the respondent in this case.
The conduct, as described in the Tribunal’s reasons, in my opinion, was more serious than the conduct here, albeit technically over a shorter period of time. VQK’s conduct was a domestic violence offence involving quite significant manipulative conduct on his part towards his long term domestic partner, in the context of a separation in November 2017, an attempted suicide by him prior to the offending period, and the sending of the text messages and images to which earlier reference is made, a few days later in December 2017. The Tribunal accepted this description in its reasons made by the counsel appearing for the Board:[9]
The conduct involved family violence towards a former domestic partner. It involved deception by a way of sending messages from [the complainant’s] Facebook account. The act of sending intimate photographs to her friends and work colleagues was conduct that was profoundly humiliating and a breach of trust. The conduct involved an attempt to publicly blame [the complainant] for VQK’s threatened suicide. The conduct was especially serious, given VQK’s status as a registered health practitioner. The behaviour was manipulative and threatening and has had a significant impact on the victim’s wellbeing. As a registered health practitioner VQK knew or ought to have known the potential impact his conduct would have on [the complainant’s] health and wellbeing. The public has a right to expect that registered health practitioners, particularly those in the nursing or paramedic professions, are empathetic and sympathetic towards victims of family violence, including abuse and stalking. Those practitioners are often the first responders. It is fundamentally inconsistent with the role those practitioners have for them [to] perpetrate family violence.
[9]Nursing and Midwifery Board of Australia v VQK (Review and Regulation) [2022] VCAT 375, 15 [69].
Very significantly, the Tribunal rejected VQK’s submission to the effect that his mental health at the time reduced his moral culpability for the offending.

Orders

For those reasons, and for the reasons set out above, the orders of the Tribunal are as follows:
Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
There be no order as to costs.

[2025] QCAT 242

9 April 2025 (Ex tempore)