Nursing and Midwifery Board of Australia v BCD
[2024] QCAT 485
•21 October 2024 (ex tempore)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v BCD [2024] QCAT 485 | |||||
PARTIES: |
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APPLICATION NO: | OCR338-22 | |||||
MATTER TYPE: | Occupational regulation matters | |||||
DELIVERED ON: | 21 October 2024 (ex tempore) | |||||
HEARING DATE: | 21 October 2024 | |||||
HEARD AT: | Brisbane | |||||
DECISION OF: | Judicial Member Dick SC Assisted by: Ms E McKibbin, Nursing Panel Member | |||||
ORDERS: | The Tribunal directs that: 1. Pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the matter will be heard and decided in the absence of the respondent. 2. The applicant must file in the Tribunal by email to [email protected] and [email protected] and serve on the respondent one (1) copy of its written submissions as to sanction, by 4:00pm on 6 December 2024. 3. The respondent may file in the Tribunal by email to [email protected] and [email protected] and serve on the applicant one (1) copy of her written submissions as to sanction, by 4:00pm on 20 December 2024. It is the decision of the Tribunal that: 1. In respect of ground 1 of the referral, the respondent has behaved in a way that constitutes professional misconduct. 2. In respect of ground 2 of the referral, the respondent has behaved in a way that constitutes unprofessional conduct. | |||||
CATCHWORDS: | PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCIPLINARY PROCEEDINGS — where the respondent was charged with and convicted of criminal offences — where the respondent failed to notify the Board of the charges — professional misconduct and unprofessional conduct ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the respondent has not engaged in the proceedings and did not appear at the final hearing — where the Tribunal is satisfied the respondent was aware of the proceedings Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) | |||||
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REASONS FOR DECISION
Non-appearance by the respondent and proceeding in the respondent’s absence
On 4 October 2024, a Delegate for the Principal Registrar of the Queensland Civil and Administrative Tribunal prepared a notice that was sent in conjunction by email and by express post to the respondent. What was sent was the notice of the tribunal hearing that was dated 4 October 2024, which read:
The parties to this application are notified that a hearing will be conducted by the Tribunal at:
Date: 21 OCTOBER 2024
Time: 10:00 am
Venue: Level 10
259 Queen Street
BRISBANE QLD 4000
You are required to attend the hearing in person.
Notes:
1. If you fail to appear at the hearing, the Tribunal may proceed and make orders in your absence.
2. Your witnesses (i.e. all persons who have provided statements) must attend the hearing unless the other party advises they are not required for cross-examination.
3. You must bring to the hearing your copies of all statements and documents relevant to the dispute.
4. It may be possible for you to attend this hearing by remote conferencing. If you would like to do this, please complete the form. This form must be lodged with the Tribunal as soon as possible or at least five working days before the hearing. You must also send a copy of the form to the other party/parties.
5. The member will determine how the hearing will be conducted.
The respondent has not appeared at the Tribunal hearing and the tribunal can be comfortably satisfied there is no appearance and it is appropriate to hear and determine the matter in the respondent’s absence.
The disciplinary referral
These are disciplinary hearings brought by the Nursing and Midwifery Board of Australia (Board) against the respondent for hearing and determination by the Tribunal under s 193B(2) of the Health Practitioner Regulation National Law (Queensland) (National Law). The background of the matter is that on or about 17 April 2020, the Office of the Health Ombudsman (OHO) received a voluntary notification pursuant to ss 144(1)(a) and 145 of the National Law from an employee at an aged care facility in Queensland.
The notification alleged that the respondent stole $10,000 from a resident at her work in aged care. Subsequently, on 20 April 2020, the OHO was informed by the Queensland Police Service (QPS) that the respondent had been charged with two counts of fraud pursuant to s 408C(1)(b) of the Criminal Code 1899 (Qld) (Code). On 30 April 2020, the OHO wrote to the respondent and proposed to take immediate registration action by suspending her registration. She had, prior to this on 2 March 2020, resigned from her position at another aged care facility.
At the end of May 2020, her registration with the Board expired, and on 5 June 2020, the respondent surrendered her registration pursuant to s 137 of the National Law. Because of that, the OHO decided not to take immediate registration action. The OHO also decided to refer the matter to the Australian Health Practitioner Regulation Agency (Ahpra) for the Board to manage, and after an investigation, the matter came before this Tribunal.
At all material times when the events the subject of the referral are said to have occurred, the respondent held general registration as a nurse.
In respect of ground 1, the Board alleges that the respondent engaged in professional misconduct and/or unprofessional conduct, in that:
(a)on 28 February 2020, the respondent fraudulently transferred $6,000 from a bank account of an aged care resident into her own bank account;
(b)on 29 February 2020, she transferred another $4,000 from the bank account of that resident into her own account;
(c)on 17 March 2020, the respondent was charged with two counts of fraud in respect of the above conduct; and
(d)on 24 July 2020 in the Magistrates Court at Pine Rivers, the respondent was convicted on her own pleas of guilty of two charges of fraud. A conviction was recorded and she was sentenced to six months imprisonment, wholly suspended, with an operational period of 12 months.
It was alleged that her conduct as alleged above is inconsistent with the code of conduct.
In respect of ground 2, it is alleged that she engaged in professional misconduct and/or unprofessional conduct because she failed to give the Board written notice within seven days of becoming aware that a “relevant event” — namely, being charged with an offence — had occurred in contravention of the National Law. It is alleged that at no time on or before 24 March 2020 did the respondent notify the Board and/or Ahpra of the criminal charges.
The Board contends that the respondent has acted in a way that constitutes professional misconduct, particularly in relation to the plea of guilty and conviction of the criminal matters.
It would be unusual if the Tribunal were not to be satisfied that convictions for such serious criminal matters by a person in a trusted position did not amount to professional misconduct, and the Tribunal is comfortably satisfied that it does amount to professional misconduct. In respect of failing to notify about a relevant event, it is the Board’s position that that behaviour amounts to unprofessional conduct, and the Tribunal is comfortably satisfied it does and is an aggravating feature for the professional misconduct in relation to ground 1.
There needs to be an adjournment of the matter to hear submissions on sanction because the Tribunal is informed that the Board needs to meet to give instructions. At this stage, the findings have been made in respect of the conduct, and we will await written submissions in respect of sanction.
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