NURSING AND MIDWIFERY BOARD OF AUSTRALIA and HIDE
[2019] WASAT 82 (S)
•7 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: NURSING AND MIDWIFERY BOARD OF AUSTRALIA and HIDE [2019] WASAT 82
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
DR B JONES, SESSIONAL MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 OCTOBER 2019
FILE NO/S: VR 62 of 2018
BETWEEN: NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
PETER DAVID HIDE
Respondent
Catchwords:
Vocational regulation - Nurse - Professional misconduct - Criminal conviction - Possession of prohibited drug with intent to sell or supply - Three years imprisonment - Drug trafficker - Disqualified from applying for registration for six months
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 31, s 5, s 193(1)(a)(i), s 196, s 196(1)(b)(iii), s 196(2)(a), s 196(2)(d), s 196(2)(e), s 196(4)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A(1)(b)(i)
Result:
Respondent found to have engaged in professional misconduct
Respondent reprimanded
Respondent disqualified from applying for registration as a registered nurse for six months
Category: B
Representation:
Counsel:
| Applicant | : | Ms A Farnworth |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Australian Health Practitioner Regulation Agency |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Dekker v Medical Board of Australia [2014] WASCA 216
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992)
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)
Medical Board of Australia v Woollard [2017] WASCA 64
Nursing & Midwifery Board of Australia v Mundy [2012] SAHPT 5
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Nursing and Midwifery Board of Australia (Board) is established pursuant to s 31 of the Health Practitioner Regulation National Law(WA) Act 2010 (National Law). By an application to the Tribunal dated 18 April 2018, the Board seeks a finding pursuant to s 196(1)(b)(iii) of the National Law that Mr Peter David Hide (Respondent) has engaged in professional misconduct. The Board also seeks an order or orders in respect of penalty under s 196 of the National Law.
The Respondent was at all material times registered under the National Law as a nurse. However, the Respondent has not been so registered since 1 July 2016.
The conduct the subject of the complaint is that the Respondent on 16 October 2015 was an occupant of a vehicle which was stopped by the police and, during a search of the vehicle, quantities of illicit drugs were found, as well as drug paraphernalia. The Respondent was charged with various offences and convicted in the District Court of Western Australia on 3 November 2017 of possession of a prohibited drug (methylamphetamine) with intent to sell or supply. He was sentenced to three years imprisonment. He was also declared a drug trafficker under the Misuse of Drugs Act 1981 (WA) (MD Act).
Proceedings in the Tribunal
The Board’s application to the Tribunal was made under s 193(1)(a)(i) of the National Law.
The Tribunal endeavoured to list the matter for a mediation conference on a number of dates, the last being on 29 November 2018.
In each case, despite efforts to accommodate the Respondent's circumstances, the Respondent did not attend.
The Tribunal understands that the Respondent was released from prison 'in or about November 2018', according to a letter from counsel for the Australian Health Practitioner Regulation Agency (AHPRA) dated 25 June 2019.
At a directions hearing on 11 December 2018, the Deputy President made orders that by 15 January 2019 the Board must file its bundle of documents and that by 12 February 2019 the Respondent may file a response to the grounds in the application as well as any other documents upon which he intended to rely. An order was also made that the decision would then be determined on the documents.
The Board filed its bundle of documents on 15 January 2019.
The Respondent did not file a response or any documents.
In the AHPRA's letter, it was confirmed that AHPRA last had contact with the Respondent on 13 November 2018. AHPRA stated that it tried to contact the Respondent on a number of occasions by email and telephone, but that his mobile number had been disconnected.
At the request of the Board, orders were made on 29 July 2019 giving the Board the opportunity to file written submissions by 6 August 2019, which were filed with the Tribunal on that date. A further order was made giving the Respondent the option to file responsive written submissions by 20 August 2019. The Respondent did not file any submissions.
Factual background
The Board's application contains a statement of facts addressing the criminal convictions. The facts coincide with the facts alleged by the prosecution in criminal proceedings against the Respondent in the District Court on 3 November 2017. In those proceedings the Respondent, through counsel, admitted to those facts and pleaded guilty to two charges of possessing methylamphetamine with intent to sell or supply to another.
The Respondent has been given every opportunity to comment on these facts but has not done so.
The Tribunal therefore makes the following findings of fact.
On 16 October 2015:
(a)at or about 1319 hours, the Respondent and a co-accused were occupants of a black Holden Commodore sedan (Respondent's vehicle), which was stopped by the Western Australia police on Terrace Road near Plain Street, East Perth;
(b)police officers subsequently searched the Respondent's vehicle under the provisions of the MD Act;
(c)during the course of the search, police officers discovered the following in the Respondent's vehicle:
(i)quantities of methylamphetamine, totalling approximately 64.59 grams (including four clip seal satchels, containing 5.57 grams in total, in the driver's side door);
(ii)approximately 1 gram of cannabis;
(iii)a large quantity of small clip seal bags and electronic scales; and
(iv)a mobile telephone containing text messages from the Respondent indicating his involvement in the sale and supply of methylamphetamine;
(d)the Respondent admitted to the police that he assisted the co-accused with her endeavours in the sale and supply of methylamphetamine by:
A.arranging sales; and
B.driving the co-accused to and from points of sale.
On 3 November 2017, the Respondent, after entering guilty pleas, was convicted of the following offences in the District Court of Western Australia:
(a)possession of a prohibited drug with intent to sell or supply (methylamphetamine) pursuant to s 6(1)(a) of the MD Act, namely 56.72 grams; and
(b)possession of a prohibited drug with intent to sell or supply (methylamphetamine) pursuant to s 6(1)(a) of the MD Act, namely 5.57 grams,
(together, the Offences).
As a result of being convicted of the Offences, the Respondent:
(a)received a sentence of 3 years imprisonment; and
(b)was declared a drug trafficker pursuant to s 32A(1)(b)(i) of the MD Act.
The issue for determination
The Tribunal must determine whether the Respondent is guilty of professional misconduct and, if so, the penalty to be imposed.
Statutory framework
Section 5 of the National Law defines 'professional misconduct' and 'unprofessional conduct'.
Professional misconduct is defined as follows:
professional misconduct of a registered health practitioner includes -
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Unprofessional conduct is relevantly defined as follows:
unprofessional conduct of a registered health practitioner means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peer, and includes –
...
(c)the conviction of a practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession.
Principles to be applied
The principle objects of vocational disciplinary proceedings are:
(1)the protection of the public 'from delinquents and wrongdoers within professions' and 'seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements';
(2)the 'need to maintain the high standards and good reputation of the profession generally in the eyes of the community'; and
(3)the 'need to deter others who may be of a like mind to transgress in the future';
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992) at 141 (Owen J).
The Tribunal agrees with the Board that the following observations of the Court in Medical Board of Australia v Woollard [2017] WASCA 64 at [130] are relevant in this proceeding:
In disciplinary proceedings in the Tribunal against medical practitioners, the principal and ultimate issue will often be one of the practitioner's present fitness to practise, although under the National Law proceedings may also be taken against a practitioner who is no longer registered: s 138 of the National Law. The observations in Health Care Complaints Commission v Do [(2014] NSWCA 307 at [35]) are pertinent in this context:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The question of whether there exists a generally accepted professional standard or duty, and its content, are questions of fact; Dekker v Medical Board of Australia [2014] WASCA 216 at [72]. One conventional way in which such facts can be proved is by the Board tendering any relevant professional conduct rules.
The Board has included in its bundle a copy of the professional conduct rules for nurses entitled Code of Professional Conduct for Nurses in Australia.
Conduct Statement 9 provides as follows:
Nurses maintain and build on the community's trust and confidence in the nursing profession
Explanation
1.The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2.The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
3.Nurses consider the ethical interests of the nursing profession and the community when exercising their right to freedom of speech and participating in public, political and academic debate, including publication.
The Board has also referred the Tribunal to the case of Nursing & Midwifery Board of Australia v Mundy [2012] SAHPT 5 at [33], where the Tribunal considered the issue of characterisation of conduct in respect of a practitioner who was convicted of one count of trafficking in amphetamines and one count of trafficking in cannabis. The Tribunal in that case found that the practitioner had engaged in professional misconduct, and in making its findings, stated that the Tribunal:
... needs to protect the profession and to maintain public confidence by emphasising to the profession and to the public that this form of misconduct is unacceptable and is to be dealt with firmly. It is our view that it is necessary for the Tribunal to indicate disapproval, both on its own behalf and on behalf of the profession.
In the particular circumstances of that case, the practitioner was censured, suspended from registration for a period of 3 months and conditions placed on her registration.
Disposition
We have already noted that the Respondent was, at all material times, a registered nurse. We have also noted that the Respondent is not currently registered under the National Law after he failed to renew his registration around May 2016. The Respondent has not been registered since 1 July 2016.
We are unaware if the Respondent intends to reapply to practise as a registered nurse.
As the Respondent is not currently registered under the National Law, paragraph (d) of s 196(2), which confers a power to suspend a practitioner's registration for a specified period, and paragraph (e) of s 196(2), which confers a power to cancel a practitioner's registration, are not relevant. However, s 196(4) of the National Law states that, if a person does not hold registration under the National Law, the Tribunal may decide to disqualify the person from applying for registration as a registered health practitioner for a specified period.
In the District Court proceedings, during Schoombee DCJ's sentencing remarks, Her Honour noted that the Respondent was, at the date of sentencing, aged 38 and that there were no issues of drug abuse or violence in the home where he grew up. He became dependant on methlyamphetamine sometime after 2015 but told the author of the pre-sentence report that he had not taken any drugs since being in custody and that he was attending private counselling with a clinic.
Her Honour said that the Respondent 'engaged extremely well in counselling' and has 'made excellent progress in providing insight' into his behaviour; ts 9, 3 November 2017.
However, Her Honour noted that the Respondent's offending was of a very serious nature and could not be seen as a 'once off occasion'; ts 11, 3 November 2017.
The Tribunal is in no doubt that the conduct which gave rise to the Respondent's criminal convictions for serious drug offences diminishes the community's trust and confidence in the nursing profession and is a clear breach by the Respondent of Conduct Statement 9. Even in the absence of such a conduct rule, it is also open to the Tribunal to infer that the conduct would be regarded generally as improper by members of the public and by professional colleagues of good repute and competency and is inconsistent with the Respondent being a fit and proper person to hold registration in the nursing profession. This conduct clearly falls within paragraph (a) and paragraph (c) of the definition of professional misconduct.
The Tribunal's conclusion is that the Respondent is guilty of professional misconduct.
Penalty
The Respondent has made no submissions in this proceeding or contributed to it in any way and the Tribunal cannot therefore take into account any possible insight which the Respondent may have into his offending or make a finding as to any remorse or contrition shown by the Respondent. The Tribunal is also unaware of whether or not the Respondent wishes at some stage in the future to resume his nursing career.
Having regard to all of the circumstances of the case and the need to protect the public, the need to maintain high standards and the preservation of the reputation of the profession of nursing, and the need to deter others from engaging in conduct similar in nature, the Tribunal concludes that the appropriate penalty is that the Respondent is reprimanded and disqualified from applying for registration with the Board for a total period of six months commencing on the date of the Tribunal's orders below.
Costs
In its application to the Tribunal, the Board sought an order for the payment by the Respondent of the Board's costs of this proceeding. However, the Board made no further reference to this in its subsequent submissions to the Tribunal.
The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings and in relation to the assessment of costs are well established and are summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [51] and [53]. While there is no reason why the Tribunal should depart from its usual practice of, where the vocational disciplinary body is successful in obtaining a finding of misconduct, awarding costs to the vocational disciplinary body, the Board has not specified any amount and the Tribunal expects that the Board has simply taken that course on the basis that there is no prospect of recovering any costs which might be awarded. On that basis, the Tribunal makes no orders as to costs.
Orders
The Tribunal makes the following orders:
1.The Tribunal finds that Peter David Hide (respondent) has behaved in a way that constitutes professional misconduct under the Health Practitioner Regulation National Law(WA) Act 2010 (National Law).
2Pursuant to s 196(2)(a) of the National Law the respondent is reprimanded.
3.Pursuant to s 196(4) of the National Law the respondent is disqualified from applying for registration as a registered health practitioner for a period of six months from the date of these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
7 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: NURSING AND MIDWIFERY BOARD OF AUSTRALIA and HIDE [2019] WASAT 82 (S)
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
DR B JONES, SESSIONAL MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 8 NOVEMBER 2019
FILE NO/S: VR 62 of 2018
BETWEEN: NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
PETER DAVID HIDE
Respondent
Catchwords:
Nurse - Professional misconduct - Application for costs
Legislation:
Health Practitioner Regulation National Law Western Australia
Result:
Costs awarded
Category: B
Representation:
Counsel:
| Applicant | : | Ms A Farnworth |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Australian Health Practitioner Regulation Agency |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)
Nursing and Midwifery Board of Australia and Hide [2019] WASAT 82
REASONS FOR DECISION OF THE TRIBUNAL:
In Nursing and Midwifery Board of Australia and Hide [2019] WASAT 82 (Hide), the Tribunal made findings including that the respondent behaved in a way that constitutes professional misconduct under the Health Practitioner Regulation National Law Western Australia. The respondent was reprimanded and is disqualified from applying for registration as a registered health practitioner for a period of six months from 7 October 2019.
In Hide at [40] and [41], the Tribunal said as follows:
In its application to the Tribunal, the Board sought an order for the payment by the Respondent of the Board's costs of this proceeding. However, the Board made no further reference to this in its subsequent submissions to the Tribunal.
The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings and in relation to the assessment of costs are well established and are summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [51] and [53]. While there is no reason why the Tribunal should depart from its usual practice of, where the vocational disciplinary body is successful in obtaining a finding of misconduct, awarding costs to the vocational disciplinary body, the Board has not specified any amount and the Tribunal expects that the Board has simply taken that course on the basis that there is no prospect of recovering any costs which might be awarded. On that basis, the Tribunal makes no orders as to costs.
Following the publication of Hide, however, the Board contacted the Tribunal clarifying that it does in fact seek payment of its costs.
What the Tribunal relevantly said about costs in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [51] and [53] was this:
51Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].
…
53In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [35] [36] and [47] [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the LP Act. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis.
This continues to reflect the Tribunal's approach in relation to costs.
The Tribunal has considered the Board's request and considers that, first, it is open to the Tribunal at this stage to make an award of costs in favour of the Board and, second, it is appropriate in the circumstances of this matter that such an order should be made.
The amount of costs claimed by the Board is $2,500, which includes the Board's disbursements. The Tribunal considers this amount to be reasonable in the circumstances.
The Tribunal accordingly makes the following order.
Orders
1.The respondent is to pay the applicant's costs fixed in the sum of $2,500. Payment is to be made within three months of the date of these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
8 NOVEMBER 2019
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