Nursing and Midwifery Board of Australia v Brearley
[2012] QCAT 323
| CITATION: | Nursing & Midwifery Board of Australia v Brearley [2012] QCAT 323 |
| PARTIES: | Nursing & Midwifery Board of Australia (Applicant) |
| v | |
| Wade Benjamin Brearley (Respondent) |
| APPLICATION NUMBER: | OCR049-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Mr Alan Barnard Mr Wayne Sanderson Ms Beryl Valentine |
| DELIVERED ON: | 20 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Brearley is reprimanded. 2. Mr Brearley is prohibited from re-applying for enrolment or registration for a period of 3 years from the date of these orders and until he has complied with the following orders: 2.1. Mr Brearley must undergo counselling with a clinical psychologist (‘the psychologist’) nominated by Mr Brearley and approved in writing by the Board. The Board must provide the psychologist with a copy of the material filed in the Tribunal and the orders and reasons of the Tribunal. The purpose of the counselling is to facilitate Mr Brearley developing insight into why he engaged in the conduct the subject of these proceedings and to develop strategies to prevent the reoccurrence of such conduct. The counselling must be for at least 12 months at a frequency determined by the psychologist and must continue until such time as the psychologist considers further counselling is unnecessary. 2.2. Mr Brearley must provide the Board with a report of the psychologist detailing the treatment provided and certifying that further counselling is unnecessary. 2.3. Mr Brearley must undergo treatment with a consultant psychiatrist (‘the psychiatrist’) to be nominated by Mr Brearley and approved in writing by the Board. The Board must provide the psychiatrist with a copy of the material filed in the Tribunal and the orders and reasons of the Tribunal. Mr Brearley must comply with all directions given by the psychiatrist. The treatment must be for at least 12 months at a frequency determined by the psychiatrist. 2.4. Mr Brearley must provide to the Board with a report of the psychiatrist detailing the treatment provided and certifying that further treatment is not required before he returns to practice. 2.5. After the Board receives the reports referred to in orders 2.2 and 2.4, Mr Brearley must undergo, at his cost, a health assessment pursuant to Part 8 Division 9 of the Health Practitioner Regulation National Law Act 2009. 3. The Board must impose the conditions set out in the Schedule to these reasons on the future enrolment or registration of Mr Brearley for a period of 2 years (such period to only run whilst Mr Brearley holds active employment as a nurse). 4. Mr Brearley may not apply to review the conditions imposed pursuant to order 3 for a period of 2 years. 5. Mr Brearley must pay all costs and expenses in relation to the matters set out in paragraphs 2 to 3. 6. Mr Brearley must pay Board’s costs of and incidental to these proceedings as assessed on the standard basis against the District Court scale, within 30 days of the Tribunal fixing those costs (or such further time as the Board may allow). |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSE – DISCIPLINARY PROCEEDINGS – where the registrant was convicted of possessing child exploitation material and ‘upskirting’ a work colleague – where the disciplinary action proceeded on the basis of criminal convictions – where the conduct subject of the charge relating to upskirting occurred while the registrant was working as a nurse – where the parties are in agreement on sanction – whether proposed orders are appropriate Criminal Code Act 1899, s 227A(2) Health Practitioners (Professional Standards) Act 1999, Schedule Medical Radiation Technologists Board of Queensland v Hennig [2010] QCAT 609 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Brearley was enrolled as a nurse on 18 August 2007. Almost a year later he started to engage in activities that led to criminal charges, which were finalised when he pleaded guilty to them in March 2011.
The Board brought disciplinary proceedings against Mr Brearley. The parties made a joint submission to the Tribunal that comprised of an agreement about the facts and proposed orders. The Tribunal was satisfied there were grounds to take disciplinary action. It invited the parties to make submissions on orders that differed marginally to those proposed. The parties supported the orders notified by the Tribunal.
The conduct
Between 8 August 2008 and 16 October 2009, Mr Brearley accessed child pornography material on numerous occasions. He was charged and pleaded guilty to 19 charges of using the internet to access the material and 1 charge of possessing child pornography.
Although it did not occur in a work context, Mr Brearley’s conduct reveals character failings that impact on his own reputation and that of his profession. It occurred over a 14 month period. He had taken steps to preserve the material on portable memory devices. Some of the images were of the most serious categories, depicting penetration, sadism or bestiality.
He was also convicted on his plea of guilty to one charge of an offence commonly referred to as upskirting.[1] This involved Mr Brearley visually recording the genital area of a female nurse colleague, without her knowledge or consent, while they were both on duty.
[1]Criminal Code Act 1899, s 227A(2).
This offence occurred whilst Mr Brearley was working as a nurse. The image was discovered when police accessed his computer when investigating the child pornography offences. It is offending of a different character, requiring Mr Brearley’s more active and direct involvement.
Conduct does not need to occur at work to be considered misconduct in a professional sense, if the conduct calls into question the character of the practitioner.[2] The Tribunal finds Mr Brearley’s conduct was:
a)Conduct of a lesser standard than might reasonably be expected of him by his professional peers and the public;
b)Infamous conduct in a professional respect;
c)Misconduct in a professional respect; and
d)Conduct discreditable to the nursing profession.[3]
[2]Medical Radiation Technologists Board of Queensland v Hennig [2010] QCAT 609, Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 578, Medical Board of Australia v Bonney [2010] QCAT 549.
[3]Health Practitioners (Professional Standards) Act 1999, Schedule definition ‘unsatisfactory professional conduct’ (a), (c), (d), (f).
Sanctions
Offences involving child pornography are not victimless crimes. The victims are the children who are sexualised and subjected to abuse. It is also concerning that Mr Brearley brought his sexual offending into the workplace. The upskirting offence indicated a willingness to play a more active part than he had previously played in securing pornographic material.
Mr Brearley has already been punished for his offences by his criminal sentences. The longest jail term was 2 years’ imprisonment. The sentences were imposed on 4 March 2011. After serving 5 months of the prison term, he was released, provided he does not commit another offence punishable by imprisonment for 3 years. If he does, he risks serving the remaining term of imprisonment. He was also placed on a term of 2 years probation upon his release. Mr Brearley has been released from prison, but is still subject to probation and the suspended sentence.
The purpose of disciplinary sanction is different to criminal sentencing. The objects of disciplinary proceedings are to maintain professional standards and confidence in the profession and to protect the public.
Mr Brearley’s conduct suggests he may present a risk to his colleagues and to the public. If he is to have the privilege of practising his profession, and enjoy the trust inherent in his role as a nurse, the sanction imposed by the Tribunal must address that risk. The Tribunal is satisfied the orders it will make in this matter will adequately do so.
Mr Brearley will be reprimanded for his conduct. That is not a trivial sanction. It is a public denunciation of his conduct that is recorded on the public register.
Mr Brearley is currently not working as a nurse. On 6 November 2009, the Board imposed conditions on his registration. This did not preclude him from working as a nurse, although it appears that he stopped working in that capacity some time before he was imprisoned.
In July 2011, Mr Brearley let his registration lapse. In order to be registered as a nurse he must apply for registration and the Board must determine that he is a fit and proper person to be registered.
The effect of the Tribunal’s orders is that Mr Brearley may not apply to be re-registered for 3 years. The Tribunal is aware that Mr Brearley ceased nursing before his registration lapsed. The material filed does not disclose when he last practised. This is relevant as he will be subject to the requirement to demonstrate recency of practice within the 5 years preceding registration.[4] If he cannot demonstrate sufficient periods of work in that time, he must undergo retraining before he can be registered.
[4]This requires the equivalent of 3 months full time work over the preceding 5 years, or completion of a Board approved program of assessment, or supervised practise: Recency of Practice Registration Standard, Nursing and Midwifery Board of Australia, 1 July 2010.
The orders require Mr Brearley to undergo 12 months of counselling and psychiatric treatment by practitioners with expertise in working with sexual offenders. Both practitioners must certify that he is fit and safe to practise as a nurse. That assessment must be confirmed by an independent health assessment of Mr Brearley by a practitioner nominated by the Board.
If Mr Brearley is registered, in addition to any conditions it may impose in exercising its statutory powers,[5] the Board must impose the conditions specified by the Tribunal. They require further counselling and treatment. Mr Brearley must not work for a nursing agency or provide nursing care for any child, except under direct supervision of a registered nurse. He must notify his employer of these orders and the Tribunal’s reasons. He must authorise his treating practitioners and employer to report to the Board. Mr Brearley must bear all costs of compliance with the conditions. He must also pay the Board’s costs of these proceedings.
[5] Health Practitioner Regulation National Law Act 2009, s 226(3).
The Tribunal’s orders will ensure Mr Brearley may not be registered until he has demonstrated that he is a fit and proper person to practise as a nurse and that he will be supervised and monitored upon his return to nursing.
Schedule
Mr Brearley must continue treatment with the psychologist at a frequency and for a duration as determined by the psychologist. Mr Brearley must comply with all directions regarding treatment given by the psychologist.
Mr Brearley must continue treatment with the psychiatrist at a frequency and for a duration as determined by the psychiatrist. Mr Brearley must comply with all directions regarding treatment given by the psychiatrist.
Within 14 days from the date of enrolment or registration, Mr Brearley must provide the following written authorisations:
3.1. an authorisation to the psychologist to report to the Board as the psychologist sees fit or as requested by the Board or its delegate, as to Mr Brearley’s ability to safely and competently practice;
3.2. an authorisation to the psychiatrist to report to the Board as the psychiatrist sees fit or as requested by the Board or its delegate, as to Mr Brearley’s ability to safely and competently practice; and
3.3. an authorisation to the Board to advise Mr Brearley’s employer if notified by the psychologist or psychiatrist of any concerns in respect of Mr Brearley.
If the psychologist or psychiatrist becomes unavailable to continue counselling or treatment, Mr Brearley must, within 7 days of the psychologist or psychiatrist becoming unavailable, nominate in writing a replacement psychologist or psychiatrist as the case may be for the Board’s approval. The replacement psychologist or psychiatrist is to be briefed by the Board with whatever materials the Board considers relevant. Mr Brearley must also provide the authorities at paragraph 3.3 of these orders. Once a replacement psychologist or psychiatrist is approved these orders are to be read such that reference to the psychologist or psychiatrist shall be interpreted as a reference to the replacement psychologist or psychiatrist.
Mr Brearley is prohibited from working for a nursing agency; and can only practice in a setting nominated by Mr Brearley and approved in writing by the Board. The nomination must include the following details –
5.1. the name and address of the proposed employer;
5.2. the address of proposed place of employment as a nurse; and
5.3. the proposed position description.
Mr Brearley is not permitted to provide any nursing care for any client or patient under the age of 18 years except whilst under the direct supervision of a registered nurse (‘the supervisor’).
The supervisor must be approved in writing by Mr Brearley’s employer prior to Mr Brearley providing any nursing care. More than 1 supervisor can be approved.
Mr Brearley must maintain a supervisor register to be completed in indelible ink. The register must be provided to the Board upon request. The register must record:
8.1. the full name of the supervisor;
8.2. the date and time of nursing care; and
8.3. the supervisor’s signature.
Mr Brearley is not permitted access to any file, whether electronic or hard copy, of any client or patient under the age of 18 years except whilst under the direct supervision of a registered nurse.
Mr Brearley is not, at his place of employment as a nurse, permitted to use any form of computer or computer device connected to, or with the capacity to connect to, the internet except whilst under the direct supervision of a registered nurse.
Prior to commencing practice in a setting approved by the Board, Mr Brearley must provide to his nursing employer a copy of these orders and the Tribunal’s reasons, and a written authority (and a copy of that authority to the Board) to report to the Board about Mr Brearley’s compliance with these orders and/or his ability to practice competently and safely at the following times:
11.1. whenever the employer holds a concern about Mr Brearley’s compliance with these orders and/or his ability to practice competently and safely; and
11.2. as otherwise requested, either verbally or in writing, by the Board or its delegate.
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