Health Ombudsman v Walker - [2022] QCAT 323

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Walker [2022] QCAT 323

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

susan maree walker

(respondent)

APPLICATION NO/S:

OCR023-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 September 2022 (ex tempore)

HEARING DATE:

7 September 2022

HEARD AT:

Brisbane

DECISION OF:
Judicial Member Robertson

Assisted by:

Ms J Stuckey
Ms L Dyer
Mr A Tuckett

ORDERS:

1. The conduct of the Respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), that the Respondent is reprimanded.

3. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), that the immediate action registration is set aside.

4. No order as to costs

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent registered nurse stole diazepam tablets prescribed to residents in the aged care facility where she was working – where she pleaded guilty to stealing as a servant and was sentenced to 12 months’ probation with no conviction reordered – where the respondent resigned from the facility shortly after – where the respondents registration has been suspended since September 2021 – where the respondent has not worked for almost two years – where the respondent has cooperated fully and parties propose a joint sanction – whether the sanction is appropriate

Health Ombudsman Act 2013 (Qld) s 62, 103, 107

Health Practitioner Regulation National Law (Qld) s 5

Health Ombudsman v ASK [2022] QCAT 174

Health Ombudsman v Britten [2020] QCAT 217

Health Ombudsman v Jamieson [2017] QCAT 172

Health Ombudsman v Macdonald [2016] QCAT 473

Health Ombudsman v Pidgeon [2022] QCAT 111

in Medical Board of Australian v Janz [2011] VCAT 106

APPEARANCES & REPRESENTATION:

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

The Director of Proceedings, on behalf of the Health Ombudsman (the applicant) has referred disciplinary proceedings against the respondent, a registered nurse, to the Tribunal under sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (the Act), seeking findings and orders under section 107.
The referral concerns the respondent’s conduct in stealing 70 diazepam tablets that had been prescribed to residents at the aged care facility where the respondent was employed as a registered nurse.
The respondent agrees and accepts that the findings and orders sought by the applicant are appropriate – that is, the referred and admitted conduct constitutes professional misconduct, that the respondent is reprimanded and that the immediate registration action is set aside and the parties bear their own costs.
Factual background
The respondent was first registered as a nurse on the 1st of July 2010.
Between the 16th and the 29th of September 2020, she stole 70 diazepam tablets that had been prescribed to treat patients at…

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: [2022] QCAT 323
Decision Date

CaseChat Overview and Summary

In the matter of Health Ombudsman v Walker, the respondent, a registered nurse, was found to have stolen 70 diazepam tablets from her workplace, an aged care facility, between the 16th and 29th of September 2020. This theft was discovered after it was noticed that diazepam tablets were going missing in quantities of 10 tablets at a time over several shifts. An audit of the rosters indicated that the respondent was the only staff member who had worked on each occasion when the medication had gone missing. The respondent resigned from the aged care facility on the 29th of September 2020. Subsequently, on the 30th of September 2020, the facility notified the Health Ombudsman, who decided to suspend the respondent’s registration on the 20th of September 2021. The respondent pleaded guilty to one count of stealing as a servant in the Ipswich Magistrates Court on the 19th of November 2021 and was sentenced to 12 months’ probation with no conviction recorded.

The central legal issue before the court was whether the respondent's conduct constituted professional misconduct under the National Law. Both parties agreed that the respondent's actions amounted to professional misconduct. The court referred to previous cases such as Health Ombudsman v Jamieson, Health Ombudsman v Macdonald, and Health Ombudsman v Britten, which supported the conclusion that stealing medical supplies by a nurse from their place of employment is a serious act of misconduct. The court also noted that while the theft of diazepam, a habit-forming drug, was concerning, it was not as severe as the theft of illicit drugs. Nevertheless, the court concluded that the respondent's conduct was a direct strike at the proper provision of medical services and thus constituted professional misconduct.

Given the agreement between the parties that the conduct amounted to professional misconduct, the court did not need to delve deeply into the specifics of the legal framework governing professional conduct. The court acknowledged the fundamental requirement of honesty and integrity in the nursing profession and found the respondent's actions to be a breach of these core values. The court set aside the immediate registration action, reprimanded the respondent, and ordered the parties to bear their own costs. This decision aligns with previous rulings and reinforces the importance of maintaining professional standards within the healthcare sector.

Orders

Orders of the court

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Background

Background to the litigation

The respondent agrees and accepts that the findings and orders sought by the applicant are appropriate – that is, the referred and admitted conduct constitutes professional misconduct, that the respondent is reprimanded and that the immediate registration action is set aside and the parties bear their own costs. Factual background The respondent was first registered as a nurse on the 1st of July 2010. Between the 16th and the 29th of September 2020, she stole 70 diazepam tablets that had been prescribed to treat patients at the aged care facility with which she was then employed. Her actions were identified after it was observed that diazepam was going missing 10 tablets at a time over a number of shifts. An audit of the rosters revealed that the respondent was the only staff member that had worked on each occasion when the medication had gone missing. On the 29th of September, the respondent resigned from the aged care facility. On the 30th of September 2020, the relevant officer from the aged care facility made a notification about the respondent to the Health Ombudsman, and on the 20th of September 2021, the Health Ombudsman decided to take immediate action and suspend the respondent’s registration. On the 19th of November 2021, the respondent entered a plea of guilty to one count of stealing as a servant in the Ipswich Magistrates Court. She was sentenced to 12 months’ probation and no conviction was recorded. Characterisation There is no dispute that the respondent’s conduct constitutes professional misconduct. The joint position of the parties, is supported by many comparable decisions of this Tribunal. In Health Ombudsman v Jamieson [2017] QCAT 172, the respondent engaged in professional misconduct, having taken three boxes of antibiotics from the Herberton Hospital, where she worked. The Tribunal stated (at [27]):The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs…while this conduct lies at the lower end of examples of this type of misconduct, it strikes directly at the proper provision of medical services, and I have no hesitation in concluding that such a theft may be characterised as professional misconduct. In Health Ombudsman v Macdonald [2016] QCAT 473 (Macdonald), the respondent engaged in professional misconduct when she took, without authority or permission, 11 boxes of Seroquel from her place of employment. In Health Ombudsman v Britten [2020] QCAT 217 (Britten), the Tribunal commented that the respondent engaged in professional conduct as defined in all three limbs of the definition[1] when she stole prescription medication from patients in an aged care facility. [1]Section 5 of the National Law. The respondent’s conduct occurred in her place of employment; however, the stealing was not in the course of her directly providing medication to patients. It was opportunistic. Conduct similar to the respondent’s has been found in previous cases to amount to professional misconduct; this is in recognition that the honesty and integrity of nurses are fundamental requirements of the profession.

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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