Health Ombudsman v Tarbert
[2020] QCAT 462
•4 November 2020 (Ex Tempore)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: Health Ombudsman v Tarbert [2020] QCAT 462 PARTIES: HEALTH OMBUDSMAN (applicant) V REGAN ZARA TARBERT (respondent) APPLICATION NO/S: OCR117-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 November 2020 (Ex Tempore) HEARING DATE: 4 November 2020 HEARD AT: Brisbane DECISION OF: Judicial Member J Robertson Assisted by: Ms Laura Dyer
Ms Suzanne Harrop
Mr Stephen LewisORDERS:
Pursuant to section 107(2)(b)(iii) of the Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to section 107(3)(a) of the Act, the respondent is reprimanded.
The conditions annexed to this Order be imposed
on the Respondent’s registrationFor the purposes of both sections 125(2)(b) and 127(3)(b) of the National Law, Subdivision 2, Division 11. Part 7 of the National Law applies to the annexed conditions For the purposes of applying Subdivision 2, Division 11, Part 7 of the National Law, the review period for the annexed conditions is six months Each party is to bear their own costs.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent was convicted on her own pleas of guilty in the Magistrates Court of three counts of
forgery, three counts of uttering, and two counts of fraud – – whether the issue of ongoing risk can be addressed by imposing conditions on the respondent.
Health Ombudsman Act 2013
Health Practitioner Regulation National Law
(Queensland)Medical Board of Australia v POS [2019] VCAT 1678 APPEARANCES &
REPRESENTATION:Applicant: M Price instructed by the Office of the Health Ombudsman Respondent: S Ames of Meridian Lawyers REASONS FOR DECISION
| On 16 April 2019, the applicant Director referred these disciplinary proceedings to the Tribunal pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). |
| At all relevant times, the respondent was registered under the Health Practitioner Regulation National Law (Queensland) (National Law) as a registered nurse with the Nursing and Midwifery Board of Australia (the Board); a health service provider within the meaning of s 8(a)(i) of the Act; and subject to the registrations standards, Codes and Guidelines approved by the Board as to what constitutes appropriate professional conduct or practice for the nursing profession, including the Code of Professional Conduct for Nurses in Australia, and the Code of Ethics for Nurses in Australia. |
| The application relates to admitted criminal conduct by the respondent which led to a number of criminal charges to which she pleaded guilty in the Gladstone Magistrates Court on 30 October 2018[1]. The relevant allegation is set out in the annexure to the referral and is described as allegation 1. |
| In response to the referral, the respondent filed a response on 20 June 2019 and essentially, she admits all of the impugned conduct the subject of allegation 1. |
| Background |
| The respondent was born on 14 April 1975, so is now 45 years of age. She holds a Bachelor of Nursing from the University of Newcastle which she obtained in 1996, and she holds a number of postgraduate qualifications. |
| She commenced employment as a Nurse Unit Manager, Operating Theatres, at the Mater Hospital Gladstone on a sixth month contract commencing 3 August 2018. |
| She had previously held positions both as a registered nurse, and a Nurse Unit Manager in various hospitals in New South Wales, including an approximately 17- month period as a nurse manager in the Middle East. |
| At the time of the relevant conduct, the respondent was living alone in Gladstone. Her usual place of residence was in New South Wales. Undoubtedly, as the evidence discloses, at this time she was extremely unwell. |
| She has a complex registration history. |
| In 2004, a notification was lodged on behalf of the Lake Macquarie Private Hospital stating that the respondent had stolen three medical officer prescription pads whilst on duty in the operating theatre; falsified prescriptions for Duramine in the name of her mother and a male friend; and presented the falsified prescriptions to three different pharmacists on three different occasions. |
| On 27 April 2005, the relevant panel of the Board thought that the practitioner respondent would benefit from psychological counselling and adjourned its decision in relation to that notification for six months without placing any conditions on her registration. |
| On 17 November 2005, the relevant panel determined that the respondent did not suffer from any impairment, did not pose any threat to patient safety, and did not place any conditions on her registration. |
| In 2010, as a result of a complaint made to the New South Wales Regulator, it was alleged that she had entered the Newcastle Private Hospital and dishonestly procured a prescription pad from operating theatres within the hospital. In her response to the regulator in December of 2010, the respondent stated that at the conclusion of her third night duty shift she remembered that she had run out of Zoloft (an anti- depressant), and as she did not have a repeat authorisation, she texted a former colleague from the hospital to get one of the blank scripts from the drug cupboard. Her colleague provided her with a complete prescription pad. The respondent put the prescription pad in her pocket and went home knowing that she could get her doctor at work to write her a prescription. Her former nurse manager telephoned her and asked her to return the pad. No prescriptions were falsified, and she returned the prescription pad as requested. |
| On 22 February 2011, the respondent was assessed by Dr Wade. Consequently, the relevant committee of the Board referred the respondent for counselling. At a meeting dated 6 October 2011, the relevant committee of the Board was satisfied that the objectives of counselling had been achieved and the matter was finalised, and the file closed. |
| As a result of the Health Ombudsman being notified that she had been charged with the offences that are the relevant conduct in these proceedings, it was determined that she was impaired and her health impairment was referred by the Health Ombudsman to the Australian Health Practitioner Regulatory Authority (AHPRA) on 25 October 2018. |
| By reference to what was said on her behalf at the court hearing on 30 October 2018, it can be accepted that for a long period, and certainly at the time of the 2004 incident which involved strikingly similar behaviour, and as a result of a dysfunctional childhood and a history of emotional and physical abuse from her former partner who constantly belittled her for being overweight, she was suffering from undiagnosed bipolar disorder and other disorders at the time of the relevant conduct. |
| Since 20 November 2018, the respondent has been under the care of clinical psychiatrist Dr Gregory Pearson. Following initial treatment for alcohol dependence |
| In his report dated 5 November 2019, which is part of the Tribunal hearing brief, Dr Pearson opined that the respondent was in a hyper manic phase of an undiagnosed bipolar disorder at the time of offending. He states that she has responded very well to treatment. |
| She is now well and as at the date of that report Dr Pearson opined as follows: |
[1] See Tab 7 Hearing Brief (HB) Statement of Agreed Facts [2]-[4]
Ms Tarbert suffers from bipolar disorder type 2 , and from an alcohol use disorder currently in remission. Ms Tarbert requires indefinite treatment for both her conditions. This should be supervised by a psychiatrist with experience in both mood and addictive disorders. She requires ongoing medication, both mood stabilising and anti-craving. She has shown an excellent response to initial treatment in its early days. She may require the addition of Lithium as a mood stabiliser. She requires regular addiction counselling and psycho- heightened education about her mood disorder so she can recognise and respond to mood changes quickly and efficiently. She requires regular reviews currently, at least monthly, though once stable the frequency could be reduced to three or even six monthly depending on her clinical progress. It is possible that there may be further mood episodes. These should be of a less severe nature and at a considerably reduced frequency. Abilify will almost certainly prevent any further elevation; there is however a significant risk of further depression, hence my suggestion a bout of Lithium may be required.
Ms Tarbert’s prognosis is excellent. It is greatly improved by establishing the correct diagnoses for a number of reasons. Bipolar depression does not respond to conventional treatment for unipolar depression, hence the chances of recurrence of her depression is greatly lessened. The chances of further elevation are substantially reduced. Better control of her mood will greatly enhance treatment for her addiction. She’s now having her addiction more aggressively managed too. Overall, her prognosis is vastly improved…
Despite having recovered from her depression Ms Tarbert remains enormously regretful and shows great remorse for her behaviour. She’s almost at a loss to understand it as it seems so ridiculous, though the prism of bipolar disorder is allowing her to see this with less judgment and self-punishment.
The thought of being unable to work as a nurse is overwhelming for Ms Tarbert. It remains front and centre of her identity. It is her only potential source of income and the consequences of being unable to do so would impact terribly on her prognosis.
Her remorse is profound and palpably so. I harbour no doubts about the level of regret Ms Tarbert experiences. Her chances of reoffending are negligible. Despite her early offences I respectfully advise that with appropriate treatment there is minimal risk of reoffence.
Relevant Conduct
| On 30 October 2018, the respondent was convicted on her own pleas of guilty in the Magistrates Court, Gladstone, of three counts of forgery, three counts of uttering, and two counts of fraud. The respondent was 43 years old when she was convicted of the dishonesty offences as well as at the time of their commission. She was then working as a unit nurse manager at the Mater Hospital Gladstone. The offending occurred when the respondent was temporarily residing and working in Gladstone. She had put on weight while she was there, against a history of eating disorders and body dysmorphia, and she began obsessing about her weight gain. |
| She had previously been prescribed the weight loss drug Duramine but knew she would be unable to obtain a further prescription for it because she was on medication for high blood pressure. |
| On three different occasions in September and early October 2018, she obtained a blank prescription from the hospital where she worked. The prescriptions each bore the stamp of a Dr Adam Bush. On each occasion, she subsequently forged a prescription for 30 tablets of Duramine and presented it at a pharmacy. In respect of the first two prescriptions, she attended a pharmacy at Kin Kora, and presented a forged prescription. She was successful on the first occasion but not the second, as the pharmacist noticed the script was handwritten and that the gynaecologist, Dr Bush, was unlikely to have prescribed Duramine. In respect of the third prescription she attended a different pharmacy, presented the forged script, and was dispensed the drug. |
| On 11 October 2018 she was located by police, arrested and charged. Upon her conviction for the offences, on her own plea of guilty, she was fined $500 and no convictions were recorded. She has no other criminal history. |
| She was stood down from her position at the hospital on 11 October 2018 and she remains registered, and her registration is current to 31 May 2021. |
| At her sentence hearing the court was told that the respondent had previously suffered from depression, anxiety and an eating disorder but that these had been managed through treatment with a psychologist in Sydney. Since arriving in Gladstone, the respondent had been working long hours and had been unable to continue her treatment with her psychologist in Sydney. |
| Characterisation of the conduct |
| There is no doubt that the dishonest use of blank prescriptions taken without permission from her employer to obtain on two out of the three occasions a weight loss drug, is conduct which falls squarely within both the first and third limbs of the definition of “professional misconduct” in s 5 of the National Law. The respondent does not contend otherwise. |
| The relevant features of her conduct demonstrating that it is substantially below the expected standard, include the serious nature of the criminal conduct; her dishonesty; the breach of trust placed in her by the nursing profession and her employer. She used the opportunity afforded her by her position as a nurse manager at the hospital to obtain blank prescriptions. |
| It was a sustained course of conduct involving at least three distinct episodes of dishonesty over a one-month period. |
| The Tribunal is satisfied that the respondent has behaved in a way that constitutes professional misconduct. |
| Sanction |
| These proceedings are protective in nature not punitive. The paramount principle underpinning the Tribunal’s disciplinary jurisdiction is the protection of the health and safety of the public. |
| General and personal deterrents are principles that inform the Tribunal’s discretion which is to be exercised by reference to the paramount principle. |
| In the Medical Board of Australia v POS [2019] VCAT 1678, the applicant had submitted that a short period of suspension was appropriate. That case involved a medical practitioner who twice attempted suicide but failed on both occasions. In a misguided attempt to cover up her attempted suicide the applicant falsely claimed to employees at her clinic that she had breast cancer, claimed leave to which she was not entitled and after returning to work sought to cover up her deception by submitting a number of false medical certificates and a false letter from a foreign health practitioner. This had occurred in a background in which the practitioner’s mental health had been severely affected by a depression and a dysfunctional childhood and also a number of serious and highly stressful life experiences. |
| The Tribunal in that case rejected the need for any form of suspension particularly noting that imposing such a short period of suspension would go beyond what was necessary in the protective jurisdiction of the relevant Tribunal and would verge on being punitive. |
| This Tribunal has stated on a number of occasions that a reprimand is not a trivial penalty, as it is a matter of public record and affects the reputation of the practitioner, both in regards to the view of the public and the opinions of professional colleagues. It has been described as a public denunciation of the conduct. The reprimand will remain on the register until the Board considers it is no longer necessary or appropriate for the information to be recorded on the register. |
| The assessment of ongoing risk is also relevant to the imposition of an appropriate disciplinary response. |
| In this case the respondent has a prior notification of a similar conduct albeit aged, and she has suffered from significant personal and mental health issues and it can be accepted that the time she committed these criminal offences she was in a hyper manic phase of an undiagnosed bipolar disorder. |
| In the view of the Tribunal, the issue of ongoing risk can be addressed by imposing conditions that ensure that the respondent and her relevant treating health practitioners, are required on a regular basis, as directed by the Board, to notify the Board of the state of her condition and any lapses. |
| In its initial submission filed on 15 May 2020, the applicant sought the imposition of a condition that the respondent continue to receive psychiatric treatment. It fairly does not persist with that submission, on the basis that on 31 January 2019 the Board decided to take no further action in respect of the Health Ombudsman referral of her health impairment to AHPRA. In addition, as noted above, the respondent is compliant with her treatment under Dr Pearson, as well as her general practitioner and her psychologist, and is now well and shows significant insight into the underlying causes of her professional misconduct. |
| In its submission, the applicant sought to address the issue of ongoing risk by requesting the Tribunal to impose education and mentoring conditions on her registration which appear as an annexure behind tab 2 in the hearing brief. As the transcript revealed, the Tribunal thinks that those conditions are unnecessary under the circumstances of this particular case and that a condition of the kind referred to above will ensure that: |
(a) the response of the Tribunal is protective and not punitive; and (b)
the Board can ensure that it has sufficient control over the monitoring of the respondent’s health to appropriately protect the health and safety of the public.
| In those circumstances the orders of the Tribunal will be as follows: | ||||||||||||
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