Nursing and Midwifery Board of Australia v Berry - [2025] QCAT 358

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v Berry [2025] QCAT 358

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(applicant)

v

COLIN MARK BERRY

(respondent)

APPLICATION NO/S:

OCR74-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 July 2025 (ex tempore)

HEARING DATE:

2 July 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Mr M Halliday
Mr S Lewis

Ms E McKibbin

ORDERS:

1.     Mr Berry is found to have engaged professional misconduct, as defined in the Health Practitioner Regulation National Law (Queensland) (‘National Law’) under paragraphs (a) and (c), for the conduct the subject of Grounds 1 to 4 of the disciplinary referral filed 22 March 2024.

2.     Mr Berry is found to have engaged in unprofessional conduct for the conduct the subject of Grounds 5 and 6 of the disciplinary referral filed 22 March 2024.

3. Mr Berry is reprimanded, pursuant to s 196(2)(a) of the National Law.

4. Mr Berry’s registration is cancelled effective from 2 July 2025, pursuant s 196(2)(e) of the National Law.

5. Mr Berry is disqualified from applying for a registration as a registered health practitioner until 27 February 2029, pursuant to s 196(4)(a) of the National Law.

6.     There is no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent practitioner is a registered nurse – where the applicant Board refers the matter to the Tribunal on six grounds relating to various criminal charges and convictions and breaches of statutory duties – where the Board is seeking that the respondent’s registration is cancelled and the respondent be disqualified from applying for registration as a registered health practitioner until the respondent’s criminal sentence is served – where the respondent is seeking that no disqualification from applying for registration as a registered health practitioner is imposed – whether the Tribunal should cancel the respondent’s registration and disqualify him from applying for registration until his criminal sentence is served

Health Practitioner Regulation National Law (Queensland) ss 193B, 196(2)(a), (c), 196(4)(a)
Mental Health Act 2011 (Qld)

Nursing and Midwifery Board of Australia, Code of Conduct for Nurses (at 1 March 2018) s 1.2

Briginshaw v Briginshaw [1938] 60 CLR 326

Council for Regulation of Health Care Professionals v General Medical Council & Fleischmann [2005] EWHC 87

Health Ombudsman v OOD [2021] QCAT 388

APPEARANCES &
REPRESENTATION

Applicant:

HL Lilley, instructed by Clayton Utz

Respondent:

Self-represented

REASONS FOR DECISION

These are disciplinary proceedings brought by the Nursing and Midwifery Board of Australia (‘Board’) against the respondent. The Board has referred the respondent’s conduct to the Tribunal for hearing and determination pursuant to section 193B of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
The referral concerns six grounds. Grounds 1 to 4 relate to various criminal charges and convictions, and Grounds 5 and 6 relate to breaches of statutory duties for failing to report to the Board and providing false and misleading information to the Board when the respondent applied to renew his registration.
The respondent first gained registration as a nurse on or about 18 January 2010. On or around 29 October 2021, the Board decided to take immediate action and suspend his registration. At all material times, the respondent was required to comply with the Nursing and Midwifery Board of Australia’s Code of Conduct for Nurses (‘Code of Conduct’). The particulars of the criminal conduct are set out in the Notice of Allegations and in the Statement of Agreed and Disputed Facts.
In relation to Ground 1, on 2 February 2021, the respondent and an accomplice attended a lawn mowing business. The respondent climbed up to the security camera and removed the camera. Later he was charged with one count of wilful damage and one count of stealing. He was fined $500.00, and no conviction was recorded.
However, this conduct, evidenced by the plea of guilty, breached section 1.2 of the Code of Conduct which requires that:
Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must:
…
(c) not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.
Ground 2 is particularised in the notice of allegations.
Ground 3 relates to conduct which occurred on or about 30 August 2021 when the respondent attended a restaurant. He entered the restaurant by climbing onto a rooftop, making his way through a vent and pulling it away. He then fell through the ceiling of the restaurant. There was significant damage caused to the restaurant and an adjoining toilet block. The damage amounted to approximately $1.3 million and, as noted in the sentencing remarks of Judge Cash, there was also a loss of business to be accounted for, and harm to the staff in that the restaurant had to close down for a period of time.
On that occasion, when the police attended, they located the respondent in a vehicle. They observed that he was intoxicated. He was taken into police custody, and he tested positive for amphetamine, methylamphetamine, and vortioxetine. He was charged with driving while relevant drug was present in his blood or saliva. On a plea of guilty on 27 October 2021, he was fined $400.00. His licence was disqualified, and a conviction was recorded.
On an earlier occasion on 18 July 2021, police were called to a private property on Beach Parade at Maroochydore. On arrival at the property, the police spoke with an informant who stated he had observed the respondent in the gated area of his elderly neighbour’s front yard and that he was looking through the window. The respondent was observed to be in possession of a black bag and a cordless circular saw. He was detained in relation to possession of suspected stolen property, and when questioned, police located a black-handled steak knife concealed under his shirt and down the front of his pants. He was charged with one count of possessing a knife in a public place. On a plea of guilty on 27 October 2021, he was fined $300.00, and no conviction was recorded.
These two criminal charges make up Ground 2 of the referral and are sufficient to satisfy findings of professional misconduct.
Going then back to Ground 3, he was charged with wilful damage and sentenced by Judge Cash in the Maroochydore District Court on 27 February 2023 to a period of imprisonment for six years. He was declared to be eligible for release on parole as of 23 November 2023. Time on pre-sentence custody was declared. It has therefore been submitted that his sentence will not be completed until or 27 February 2029. He is presently on parole for that sentence.
Ground 4 relates to further alleged criminal conduct and involved a plea of guilty to breach of bail and to an offence of entering a premises to commit an indictable offence. On or about 2 June 2023, he was sentenced to five months’ imprisonment concurrent with the sentence he was then serving.
Grounds 5 and 6 relate to breaches of the requirement to provide notice to the Board within seven days of a relevant event. Ground 6 relates to providing the Board with misleading information; that is, information about his criminal history when he applied for registration. Specifically, the respondent was asked:
Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?
He answered no.
Mr Berry has said that he understood that Ahpra was aware of his criminal history at that stage, but the question, although a little obscure, clearly required his answer to be yes. This is because the question was clearly asking for a declaration on his application for registration, and not just something that might be within the general knowledge of Ahpra.
The Tribunal is of the view that in relation to Grounds 5 and 6, the respondent has conducted himself in a way that amounts to unprofessional conduct.
In relation to the other four Grounds, where there are criminal convictions on pleas of guilty, the applicant submits the conduct with respect to each Ground is a breach of the Code of Conduct, which I have already quoted. It would be very unusual for the Tribunal to take the view, particularly on Ground 3, that such grounds would not amount to professional misconduct.
The respondent has provided a large number of references, has called a witness to speak on his behalf, and it is clear that he has done much for his rehabilitation. The Founder and President of SMEAC Inc (‘SMEAC’), Mr Cuming, spoke eloquently of the respondent’s importance to SMEAC, a veteran run and publicly operated benevolent charitable institution based on the Sunshine Coast, north of Brisbane.
He has references from the following:
(a)the Returned & Services League of Australia (‘RSL’);
(b)friends; and
(c)a senior lecturer in social work at the University of the Sunshine Coast.
He has also produced a letter from Hader Clinic Queensland, dated 18 August 2022, which makes it pretty dated now, but that indicates he entered the 90-day residential program on 22 February 2022 and completed the program in May 2022.
There is a report from Primrose Psychology. It is of limited use because he has only met with the psychologist there about a week ago, but it is helpful in the sense that the report makes it clear that his treatment will be ongoing for some time, and that it would assist his continuing recovery to retain his identity as a professional.
The Tribunal also has a report before it from Dr Perce Tucker. Once again, it is dated as the last interview was on 23 February 2023, but it is useful in the sense that it says the 5 conditions suffered by the respondent, which include ADHD, chronic PTSD, temporal lobe epilepsy, hypothyroidism, drug dependency, et cetera, have and will continue to require complex lifelong medications and psychosocial treatment in a specialist psychiatric-neuropsychiatric setting with other medical specialist inputs as required.
It is important to understand the role of the Tribunal. First of all, the Board bears the onus of proof in these proceedings and must satisfy the Tribunal of the relevant facts and matters on the balance of probabilities in accordance with the test in Briginshaw v Briginshaw [1938] 60 CLR 326.
In a proceeding such as this, the Tribunal may decide that the practitioner has no case to answer, or may decide any one of the following:
(a)the practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, professional misconduct;
(b)the practitioner has an impairment; or
(c)that the practitioner’s registration was improperly obtained.
The definition of professional misconduct is 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 could be 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 practitioner of an equivalent level of training or experience.
It is up to the Tribunal to assess the degree of seriousness of the practitioner’s conduct, having regard to the extent to which the conduct departs from proper standards of professional conduct of a registered nurse. There are proper standards of professional conduct of a registered nurse and codes of conduct approved by the Board. Here, the applicant has relied heavily on the Code of Conduct, particularly in relation to a requirement for lawful behaviour.
In relation to the conduct in Grounds 1 to 4, they are all serious because they are criminal conduct and are against the law. There is a repetitive nature to the matters. In respect of the respondent’s conduct in February 2021, July 2021, August 2021, which constitutes the Grounds, the Tribunal is comfortably satisfied that they demonstrate conduct that is substantially below the standard expected of health practitioners.
I have already dealt with Grounds 5 and 6, which I am satisfied amount to unprofessional conduct.
Turning now to the question of sanction. It is up to the Tribunal to decide on the sanction, but it is well-established that disciplinary proceedings are protective not punitive in nature. What should be taken into account is protection of the public and the importance of the public’s faith in the profession. Objectives of specific and general deterrence serve those purposes. So, the Tribunal needs to consider the following:
(a)the nature and seriousness of the conduct;
(b)whether the practitioner acknowledged culpability;
(c)whether there is evidence of contrition or remorse;
(d)what needs to be done for general and specific deterrence; and
(e)evidence of rehabilitation.
As I say, all of these matters have been mentioned either in the material before us or in the oral testimony. There is no doubt that any criminal conduct that results in a sentence of six years is serious criminal conduct. There have been some arguments about some of the more subsidiary matters. There is evidence of the respondent’s contrition or remorse. We have heard from the respondent himself here today, and what he said should be accepted.
As to specific deterrence, his future good behaviour will depend on his abstinence from drugs. It is as simple as that. It is what the psychiatrists and the psychologists say.
The need for general deterrence is very important. General deterrence is concerned with sending a message out to other practitioners that should they behave in a similar way, they will receive a similar penalty. Nurses should be aware that criminal conduct will almost certainly lead to a disqualification and a cancellation of their registration.
There is character evidence here and evidence of rehabilitation. It comes through the references and in the evidence we have heard today. The Tribunal has to consider future risk, and the applicant has been very clear in stating that he has been abstinent since 11 June 2024, but it is still early days if one reads Dr Tucker’s report.
Something should be said about the respondent’s background. In his 20s, he served in the Australian Defence Forces, deployed to East Timor. This is where the post-traumatic stress disorder developed. I am taking much of this from Judge Cash’s sentencing remarks. In 2003, he was assaulted with a baseball bat and suffered a serious head injury requiring lengthy rehabilitation which caused the epilepsy I mentioned earlier. These injuries led to his discharge from the Australian Defence Force in 2003.
After that, he qualified as a nurse and worked for many years in aged care and palliative care, and committed no offences. Sadly, in 2014, his six-year-old son died, and that is said to have triggered his resort to drug use as a form of self-medication. At the date of the hearing in the District Court, the respondent was also suffering from bipolar effective disorder.
As his mental state at the time of the offences was attributable to his consumption of drugs, he was not able to be dealt with under the Mental Health Act 2011 (Qld). However, the sentencing Judge accepted, and it is accepted by the Board, that his moral culpability, or his blameworthiness, was reduced because of the extent to which he was suffering from psychiatric illness at the time.
It must be said that the respondent has not, in this proceeding, produced up-to-date reliable evidence, which:
(a)speaks to his management of the conditions;
(b)evidence of his current health and fitness to practice; and
(c)evidence of the conditions of his parole to the extent that he may have conditions that monitor his drug use.
In the absence of such evidence, it is difficult for the Tribunal to come to a finding.
Other matters which should be noted as speaking positively to his insight, remorse, and moral culpability include:
(a)his pleas of guilty to each of the offences the subject of the referral;
(b)his volunteering on a full-time basis at SMEAC; and
(c)his drug rehabilitation.
Although it has to be said there is no sworn evidence to the matters aforementioned in paragraph 36, or to the fact that his drug rehabilitation is being monitored on an ongoing basis via his parole and regular meetings with a psychologist and a health care team.
As I said to the respondent during the course of the submissions, it is important that he gets such material together for when he reapplies for registration.
The problem for the respondent is that in nearly every jurisdiction in which there is a tribunal of this nature, there have been statements made, that is, a general principle that where a practitioner has been convicted of a serious criminal offence, he should not be permitted to resume his practice until he has satisfactorily completed his sentence. What that means is that it is not just the actual term in custody that must be completed. This is a six-year sentence. By being on parole, it is considered that he is still serving his sentence, but in the community.
That statement I have just made is in the comments of Newman J in Council for Regulation of Health Care Professionals v General Medical Council & Fleischmann [2005] EWHC 87. It has also been a statement that has been made in this jurisdiction on more than one occasion.
In the case of Health Ombudsman v OOD [2021] QCAT 388, Judicial Member Robertson referred to this very issue, and he quoted from a Victorian case of Pharmacy Board of Australia v Kozanoglu (Review and Regulation) [2016] VCAT 1271, the statement:
It would have been incongruous to allow Mr Kozanoglu to apply for registration while he was serving a period of suspended sentence. It could not be said that he could meet the test of being a fit and proper person for registration while still under sentence. Therefore, the 18 months to run from his end of the sentence was an appropriate length of disqualification.
Judicial Member Robertson said:
I agree with the applicant, by reference to the approach taken in similar Tribunals in other States in similar factual circumstances, that any period of disqualification from applying for registration should be co-extensive with the respondent’s remaining term of imprisonment. I agree, that it would be incongruous, and inconsistent with important principles of deterrence and maintenance of public confidence in the profession, to permit her to apply for registration while she is still on parole for serious drug offending.
There are a number of other cases referred to in the submissions, which make similar comments. The applicant has referred to a number of cases which they say are not directly on point but may assist.
So, we come down to the nub of the problem for the respondent: he is still serving his sentence. It would bring the profession into disrepute if he was allowed to resume. He has not, I take it, suggested anything to the Board about conditional registration, but even if that were the case I think that the authorities are sufficiently persuasive that we should proceed as follows below.
The Tribunal finds that:
(a)for each of Grounds 1 to 4, the respondent engaged in professional misconduct under subparagraphs (a) and (c) of the definition; and
(b)for Grounds 5 and 6, the respondent engaged in unprofessional conduct.

The Tribunal determines that the respondent should be sanctioned with the following orders:
(a)a reprimand under section 196(2)(a) of the National Law;
(b)cancellation under section 196(2)(c) of the National Law; and
(c)a disqualification period which operates until 27 February 2029 under section 196(4)(a) of the National Law.
There is no order as to costs.