Nursing and Midwifery Board of Australia v Bradley

[2011] QCAT 336

CITATION: Nursing and Midwifery Board of Australia v Bradley [2011] QCAT 336

PARTIES:	Nursing and Midwifery Board of Australia (Applicant/Appellant)
v
Susanna BRADLEY (Respondent)

APPLICATION NUMBER:   OCR043-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham
(Deputy President)
(Assessors)
Ms Catherine James
Ms Anne O’Farrell
Dr Mary Sidebotham

DELIVERED ON: 19 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.        Ms Bradley is reprimanded.

2.        Ms Bradley is prohibited from reapplying for registration, or applying for enrolment or an authorisation to practise nursing, until:

2.1     A period of 3 months from the date of these orders has elapsed; and

2.2     Ms Bradley has completed twice-monthly haematological testing [Carbohydrate Deficit Transferrin (CDT), Mean Corpuscular Volume (MCV) and Liver Function Test (LFT)] the results of which must be provided to the Board on a monthly basis and which must demonstrate abstinence from alcohol consumption for at least 3 consecutive months; and

2.3    She has completed twice-monthly Urine Drug Screen (UDS) testing, the results of which must be provided to the Board on a monthly basis for at least 3 consecutive months and which must demonstrate abstinence from alcohol consumption and be negative for all substances other than those prescribed by a medical practitioner; and

2.4    She has consulted Dr Max Mansoor (or in the event Dr Mansoor becomes unavailable, a medical practitioner that must first be nominated by Ms Bradley and approved in writing by the Board [‘the approved medical practitioner’]) for treatment of her alcohol dependence at a frequency to be determined by Dr Mansoor (or the approved medical practitioner), but in any event not less than monthly, and Dr Mansoor (or the approved medical practitioner) has certified her fit to return to practise. Ms Bradley must continue to take any medications ordered by Dr Mansoor (or the approved medical practitioner) and otherwise comply with any directions given by Dr Mansoor (or the approved medical practitioner). Ms Bradley must authorise Dr Mansoor (or the approved medical practitioner) to report to the Board as to her health status as Dr Mansoor (or the approved medical practitioner) sees fit, or as requested by the Board; and

2.5      She has, until such time as Dr Mansoor (or the approved medical practitioner) has certified her fit to return to practise, continued to attend an ATODS clinic for treatment at a frequency to be determined by the clinic, but in any event not less than monthly, and complied fully with any directions made by the clinic as to her treatment.

3.        The following conditions must be imposed upon any future registration, enrolment, or authorisation to practise nursing of Ms Bradley for a period of 12 months from the commencement date of such registration, enrolment, or authorisation to practise nursing (in addition to any conditions that may be imposed by the Board in exercising its independent statutory discretion):

3.1      Ms Bradley must remain totally abstinent from alcohol;

3.2      That Ms Bradley must undertake monthly haematological testing (CDT, MCV and LFT) the results of which must be provided to the Board on a monthly basis and which must demonstrate abstinence from alcohol consumption;

3.3      That Ms Bradley must undertake twice-monthly UDS testing, the results of which must be provided to the Board on a monthly basis and which must demonstrate abstinence from alcohol consumption and be negative for all substances other than those prescribed by a medical practitioner;

3.4      That Ms Bradley must undertake a random UDS on receipt of any oral or written direction from the Board, or any duly authorised person on behalf of the Board, within 5 hours of receiving such direction, the result of which must be provided to the Board within 7 days and which must demonstrate abstinence from alcohol consumption and be negative for all substances other than those prescribed by a medical practitioner;

3.5                  That Ms Bradley must continue to consult Dr Max Mansoor (or the approved medical practitioner) for treatment of her alcohol dependence at a frequency to be determined by Dr Mansoor (or the approved medical practitioner), but in any event not less than monthly. Ms Bradley must continue to take any medications ordered by Dr Mansoor (or the approved medical practitioner) and otherwise comply with any directions given by Dr Mansoor (or the approved medical practitioner). Ms Bradley will authorise Dr Mansoor (or the approved medical practitioner) to report to the Board as to Ms Bradley’s health status as Dr Mansoor (or the approved medical practitioner) sees fit, or as requested by the Board.

3.6      That Ms Bradley must continue to attend an ATODS clinic for treatment at a frequency to be determined by the clinic, but in any event not less than monthly, and comply fully with any directions made by the clinic as to her treatment.

3.7      That Ms Bradley will undergo breathalyser testing at the commencement of each employment shift, the results of which must be negative for alcohol. Ms Bradley must authorise her employer to provide the results of that testing to the Board on a monthly basis and to notify the Board immediately of any positive results;

3.8      That Ms Bradley will, at 6 and 12 months from the commencement date of such registration, enrolment, or authorisation to practise nursing, provide the Board a report from her employer addressing her competence and fitness to practise;

3.9      That Ms Bradley will authorise the Board to advise her employer if notified by Dr Mansoor (or the approved medical practitioner) (pursuant to paragraph 3.5 of these orders) of any concerns in respect of Ms Bradley’s competence and fitness to practise;

3.10    That Ms Bradley must, within 2 business days of gaining employment as a nurse, notify the Board in writing of:

3.10.1      the name and address of the employer, and if listed with a nursing agency, the name and address of that agency;

3.10.2      the address of her place of employment as a nurse;

3.10.3      the position description at the place of employment;

3.10.4      the name and contact telephone numbers of her supervisors at the place of employment, and if listed with a nursing agency, the name and contact telephone numbers of the person with whom she liaises at the agency.

3.11    That Ms Bradley must notify the Board within 2 business days of a change in any of the details required pursuant to paragraph 4.10 of these orders.

4.        The costs of complying with paragraphs 2 and 3 of these orders must be borne by Ms Bradley.

5.        Ms Bradley must pay the Board’s costs of and incidental to these proceedings on a standard basis on the District Court scale as agreed, or as assessed, within 3 months from the date of these orders.

CATCHWORDS: 

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – Nurse – where Nurse diagnosed with Alcohol dependence – where Nurse gave undertakings to undergo breathalyser testing prior to each shift – where Nurse failed to do so on 25 occasions over a 1 month period – where Nurse believed cost of compliance with undertakings should be borne by the Nursing Council – whether Nurse demonstrated lack of awareness regarding her medical condition and her personal responsibility in dealing with it

Nursing Act 1992 s 104A(3)(a)–(b),(d)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Bradley was registered as a nurse in Queensland in October 1986.  Until 10 November 2007 no question had been raised about her fitness to practise.  On that day she was sent home from a shift at Aramac Hospital because she smelt of alcohol.

2. The Queensland Nursing Council, since replaced by the Nursing and Midwifery Board of Australia, was notified and dealt with Ms Bradley’s case as a possible health impairment issue.  She was diagnosed with alcohol dependence and gave undertakings which included that she would undergo mandatory breathalyser testing at the commencement of each employment shift.  She failed to do so on 25 occasions between 17 November 2008 and 17 December 2008.  Each of those occasions represented a breach of Ms Bradley’s undertakings to the Council.  The Council was not informed she had been intoxicated on any of those occasions and these proceedings are brought on the basis of the breach of her undertaking to be breathalysed.

3. Ms Bradley’s registration was suspended on 24 December 2008.  She let her registration lapse on 30 June 2009.  She is not currently registered.

4. Ms Bradley does not contest these proceedings and has agreed that the orders proposed by the Board should be made.  Her explanation for the breaches of the undertaking was that she thought the breathalyser would be provided by the Council and she was not in a position to purchase one herself.  It is evident that as late as May 2009, when she saw the psychiatrist Dr Storor, to whom she had been referred by the Council that she still considered the Council should provide the means for her to comply with her undertakings.  She prioritised the costs of her study over the costs of complying with the undertakings, an indication that she did not accept responsibility for them or appreciate their seriousness or significance.

5. Ms Bradley is clearly an intelligent person.  She reports high distinctions for her assessment in a graduate diploma in Occupational Health and Safety.  The form of undertakings she signed included her acknowledgement that they were given in order that she could continue to hold a licence to practise as a registered nurse, without any limitations or conditions being placed on her annual licence certificate.  It also includes her acknowledgement that a breach of any one or more of the undertakings may amount to unsatisfactory professional conduct enabling the Council to prefer a charge against her in respect of the breach.  The conclusion that she was aware of the significance of the undertakings and treated them with contempt is irresistible.  

6. It is certainly professional conduct of a lesser standard than might reasonably be expected of her by the public or her peers.[1]  It demonstrates a lack of judgment in her nursing practice.[2]  Given the acknowledgements in the undertakings, her deliberate disregard for their terms also qualifies as misconduct in a professional respect.[3] 

   [1]        Nursing Act 1992 s 104A (3) (a).

   [2]        Nursing Act 1992 s 104A (3) (b).

   [3]        Nursing Act 1992 s 104A (3) (d).

7. Ms Bradley gave these undertakings to the Council at a time that it sought to facilitate appropriate treatment of what was clearly then an impairment issue.  It is unfortunate that Ms Bradley could not find it within herself to complete the undertakings under the impairment process.  The result has been that she has been drawn into a disciplinary process at a time when she otherwise could have been on unlimited registration and in employment.

8. Dealing with alcohol dependence is not an easy or straightforward matter.  Dr Storor’s opinion is that Ms Bradley’s condition is significant.  In February 2011 he confirmed that it presented a serious risk to patient health and safety and that she required treatment prior to returning to practise and on-going and close supervision and monitoring upon resumption.

9. It seems that Ms Bradley accepts Dr Storor’s opinion as she has agreed that the conditions the Board proposes are appropriate. 

[10]  The evidence currently before the Tribunal does not demonstrate that Ms Bradley is now fit to practise.  She accepts this by consenting to orders that would involve a further 3 month preclusion period during which she must demonstrate her abstinence from all substances other than those prescribed by a medical practitioner.  She must also consult with Dr Mansoor or another approved practitioner for treatment for alcohol dependence.  Until the doctor certifies her fit to return to practise she must continue to attend an ATODS clinic for treatment, not less than monthly, and fully comply with any directions made by the clinic as to her treatment.

[11]  Once Ms Bradley has fulfilled the preconditions to registration she will have to re-apply and demonstrate her fitness to practise.  Dr Mansoor’s certification would form part of the material upon which the Board would make that assessment. 

[12]  Ms Bradley agrees that it would be appropriate for the Tribunal to order that her future registration is subject to conditions which would be imposed for a period of 12 months from registration.  Those conditions would require total abstinence from alcohol and close and on-going supervision and monitoring of that through a programme of regular and random testing including breathalyser testing at the commencement of each employment shift.  Throughout the year, she must continue to consult, at least monthly, with Dr Mansoor and continue to attend an ATODS, clinic not less than monthly. 

[13]  The agreed conditions also involve reporting by Dr Mansoor and Ms Bradley’s employer about her competence and fitness to practise.  All the costs of complying with the conditions must be borne by Ms Bradley.

[14]  The regime proposed by the Board and agreed to by Ms Bradley will impose a significant burden on her and will ensure there is very limited scope for breaching the obligation to remain abstinent.  However, those conditions are not a sanction for her conduct and are not designed to punish her.  Rather they are intended to enable her rehabilitation and to support her efforts to overcome her dependence.  They are also intended to protect the public.  The element of the proposed orders which is a sanction for the breach of her undertakings is the period during which she is precluded from re-applying for registration.

[15]  Fairly, in the Tribunal’s view, the Board has expressed a reservation about Ms Bradley’s current insight about her condition.  Certainly the conduct which has led to these disciplinary proceedings demonstrates a lack of awareness both of her medical condition and of her personal responsibility for dealing with it.  Her lack of self awareness is evident from the different accounts that she has given to different practitioners about her level of substance abuse.  It is also demonstrated by her continued belief that it was a matter for the Council to provide her with the means to fulfil her undertakings.  Ms Bradley can be in no doubt now that these matters fall to her to address and that she must bear the burden whether logistical or financial of ensuring her compliance with conditions that she has, once more, agreed to.

[16]  If Ms Bradley is able to respond to the support that she will receive through treatment by Dr Mansoor, attendance at the ATODS clinic and close supervision of her commitment to abstinence, she will be well placed to return to unlimited registration as a nurse and to continue an otherwise unblemished career in the profession.