Health Ombudsman v WHT

[2022] QCAT 425

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v WHT [2022] QCAT 425

PARTIES:

director of proceedings on behalf of the Health Ombudsman

(applicant)

v

WHT

(respondent)

APPLICATION NO/S:

OCR328-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 November 2022 (ex tempore)

HEARING DATE:

15 November 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Dick SC

Assisted by:

 
Ms M Sidebotham
Mr S Lewis

Mr P Glazebrook

ORDERS:

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

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

3.     Each party to bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – SANCTION – where the respondent nurse stole an oxycodone tablet on 48 occasions from a hospital at which she was employed – where the respondent pleaded guilty and was sentenced in respect of one count of stealing as a servant and one count of possessing dangerous drugs –where the respondent has already been subject to an administrative suspension – where the parties agree on sanction – whether a reprimand is the appropriate sanction

Health Ombudsman Act 2013 (Qld) s 107

Queensland Civil and Administrative Tribunal Act 2009 s 66

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

Background

1. On 48 occasions, between the 11th of May and the 13th of July 2020, the respondent, whilst working as a registered nurse at a hospital, stole one oxycodone tablet on each occasion. 

2. The respondent later pleaded guilty and was sentenced in respect of one count of stealing as a servant and one count of possessing dangerous drugs.  She was fined and no conviction was recorded. 

3. The parties have jointly signed a statement of agreed facts. 

   Jurisdiction

4. The respondent was a registered health practitioner at all relevant times and, although she surrendered her registration, on 22 September 2021, under section 21 of the Health Ombudsman Act, she falls to be treated now as if she was still a registered health practitioner. The Health Ombudsman Act 2013 (Qld) empowers the Tribunal to make various decisions and orders in respect of registered health practitioners.

   Characterisation of the conduct

5. The respondent accepts that her behaviour amounts to professional misconduct.  That is an appropriate concession, taking into account:

   (a)the criminal nature of the conduct;

   (b)the dishonest nature of the conduct;

   (c)the dishonesty occurred in the workplace and served to deceive a colleague who was there to ensure the observation of proper protocols;

   (d)the respondent’s breach of trust imposed on her by the profession, her colleagues, the hospital and her patients;

   (e)the respondent diverted painkillers away from patients who needed them or, at least, created that possibility; and

   (f)the actions were deliberate and occurred over a two-month period.

6. The conduct offends against both the Nursing and Midwifery Board of Australia’s Code of Conduct for nurses and the registered nurse standards for practice, and it fits the description of conduct that is substantially below the standard reasonably expected of a registered nurse practitioner of an equivalent level of training or experience.

   Context to the offending

7. The material provided is a lengthy statement by the respondent, setting out the context to the offending.  Significantly, at age 16, she was diagnosed with an anxiety disorder and mild OCD and she was treated with the antidepressant, Lexapro. 

8. In the years prior to these events, that is, from October 2019, the respondent sought medical treatment for a variety of issues on a very regular basis, sometimes two or three times a month.  Some of these are support by letters by medical professionals.  The issues that led to these visits included tiredness, dizziness, upper abdominal pain and bloating, lower pelvic pain and vaginal bleeding and weight loss.  From January 2020, she was prescribed Endone on at least five occasions and, once, took it of her own accord from an earlier prescription.  After that, she received three more scripts, by this time, for back pain. 

   Psychological report

9. The respondent was referred to a private drug and alcohol rehabilitation facility.  The respondent’s residential program was [towards the end of 2020], during which time she was treated by a team of qualified therapists.  She was diagnosed with sever opioid substance disorder, generalised anxiety disorder and anorexia nervosa.  To those professionals, she expressed deep remorse for her actions.  In addition, she has presently a specialised treatment plan in place.  It should continue.  Her long-term prognosis is positive, provided she continues such treatment.  Otherwise, it is guarded.

   Comparative cases

10. The Tribunal has read each of the comparative cases provided by the applicant and respondent. 

    Co-operation and Insight

11. The respondent cooperated with the internal investigation, the police investigation, the criminal proceedings and this disciplinary matter.

12. Her cooperation speaks to her insight and remorse and she has actively sought psychological treatment to assist in her rehabilitation.

    Sanction

13. The applicant submits that the respondent should be reprimanded.  The respondent does not disagree.  Nevertheless, it falls to the Tribunal to determine the application sanction, giving full weight to those submissions.  The respondent was suspended from registration by the Health Ombudsman in September 2020.  It is submitted by both parties that in light of the comparative cases, no further period of preclusion is necessary.  A reprimand is not a trivial sanction.  It has potential for serious adverse consequences to the practitioner and is a matter of public record. 

Non-Publication Order

1. There is an auxiliary matter here. Although QCAT matters are generally open, the Tribunal has power to make a non-publication order pursuant to section 66(2)(b) of the Act.

2. Ms Ray, the psychologist, opines that the publication would:

   …pose a significant risk to (the respondent), current and long-term mental health and wellbeing.

   and that:

   Media exposure related to (the respondent) legal situation would potentially trigger embarrassment, guilt and shame.  As such, this would put the respondent at significant risk of self-harm behaviours and potential suicidal ideation.

3. Ms Ray’s report deals with deeply personal issues of trauma to the respondent, and that publication, or notification of those personal issues would further traumatise the respondent.  The applicant has not presented an argument to the contrary.

4. On 29 August 2022 Her Honour Judge Dann, Deputy President made an order prohibiting, amongst other things, publication of the respondents name until further order. I am satisfied this order should remain in force.

   Orders

5. The decisions and orders of the Tribunal are as follows:

   (a)pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;

   (b)pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; and

   (c)each party to bear their own costs of the proceeding.