Nursing and Midwifery Board of Australia v Brereton

[2011] QCAT 578

CITATION: Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 578

PARTIES:	Nursing and Midwifery Board of Australia (Applicant/Appellant)
v
Anthony John Brereton (Respondent)

APPLICATION NUMBER:   OCR173-10

MATTER TYPE: Occupational regulation matters

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by:
Ms Aileen Tan
Ms Jocelyn Toohill
Mr Stephen Lewis

DELIVERED ON: 11 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    The parties are invited to make concise written submissions which address the questions set out in paragraph 25 of these reasons by 23 October 2011.

CATCHWORDS: 

DISCIPLINARY – Nurse – where nurse convicted of serious drug offences – where nurse conceded grounds exist for taking disciplinary action – where parties agreed on proposed sanction – whether period since nurse surrendered his registration should be considered – whether post-registration conditions should be imposed

Health Practitioners (Professional Standards) Act1999, ss 405L, 405P(1), 405P(5)

Nursing Act1992, ss 102D, 104A

REASONS FOR DECISION

1. Mr Brereton resigned from his position as a nurse at a public hospital and surrendered his registration in September 2008, a few months after he had been charged with serious drug related offences.  In March the following year, he pleaded guilty to charges of producing and possessing dangerous drugs and related charges.[1]  He was sentenced to three years imprisonment on the most serious of those offences.  Mr Brereton was released on parole on 17 June 2009, having served one year in prison.

   [1]Two counts of possessing methyl amphetamine; one count of possessing cannabis; one count of producing methyl amphetamine; six counts of possession of either substances, items or instructions relevant to producing a dangerous drug; summary offences relating to possession of a pipe, a silencer, fireworks, equipment reasonably suspected of being tainted property and obstructing police.

1. The Board brought disciplinary proceedings based on both Mr Brereton’s conduct and on the convictions.[2]  Mr Brereton admitted there are grounds to take disciplinary action against him.  Given the nature of his offending and the convictions entered against him, that is unarguable.

   [2]These proceedings were commenced under the Nursing Act1992, ss 104A(1)(a), (1)(g), (3) since repealed. The effect of the transitional provisions is these proceedings continue to be dealt with as if the Act had not been repealed: Health Practitioners (Professional Standards) Act1999, s 405P(1); s 405P(5): definitions of existing QCAT proceeding and registration proceeding in relevant Act; s 405L: definitions of amending Act and repealed Health Practitioner Registration Act.

2. The parties have jointly proposed a sanction that would preclude Mr Brereton from applying for registration for 4 years from the orders and only after he has fulfilled certain conditions relating to further education and a health assessment.  Despite the parties’ agreement, it is a matter for the Tribunal to determine what sanction is appropriate in the circumstances.

3. In doing so, it is necessary to consider the details of Mr Brereton’s criminal offending before turning to the view the Tribunal takes of this in a disciplinary context.

The criminal offences

1. The charged conduct occurred in May and June 2008.  It related to the production of methyl amphetamine.  Mr Brereton and another offender were found in possession of a substantial quantity of the drug itself and, also, precursor chemicals, instructions for and implements used in its production.

2. At the time of sentence, Mr Brereton was 31 with a minor drug conviction from 10 years earlier.  His co-offender had a more serious history, including one of producing methyl amphetamine only a few years before the offences occurred.  The learned sentencing Judge regarded Mr Brereton as the slightly lesser offender and reflected this in the terms he imposed on the two.  He found the production was at the low end of the scale; there was no evidence of a commercial activity, and it was primarily intended for personal use, although it was likely to be shared with others in their circle.  The Board submitted the intention to share the drug with others has special significance in a disciplinary context.

3. The Board submitted a number of other factors the Tribunal should take into account in determining the sanction.  Largely these come from the Police Brief, including a summary prepared for the prosecutor for sentence and the statutory declaration of a police officer who attended when Mr Brereton was arrested in May.  Although not specifically the subject of admissions in the Agreed Statement of Facts, this material forms part of the Bundle of Documents agreed between the parties.  As such, the Tribunal accepts it as uncontested evidence.

4. In summary, these factors are:

a)     The offending had a measure of sophistication given the amount of the drugs, chemicals and glassware located at the lab;

b)     Police determined that amphetamines were exchanged for chemicals and glassware;

c)     He possessed a replica pistol and silencer;

d)     Mr Brereton advised police he would cook every 2 to 3 days;

e)     When the police attended in May, Mr Brereton tried to flee the scene and lied in response to questions about the lab;

f)   The June offences occurred when he was on bail for the May offences; and

g)     He showed reckless or callous disregard for the health and welfare of others he might provide the drug to and, as a nurse, should have a greater appreciation of those risks.

Unsatisfactory professional conduct

1. The Tribunal is satisfied Mr Brereton’s conduct is of a lesser standard than the public and his professional peers might reasonably expect of him.  It is also conduct discreditable to the profession that a nurse, whose professional obligation is to care for the health of others, would manufacture and provide to others a drug that is so addictive and detrimental to the user’s health.  Whether or not he did this with a commercial purpose is of little moment.  No doubt his judgment was impaired by his own habit.  That is relevant to sanction, but not to determining whether his conduct was discreditable to the nursing profession.

2. The Tribunal is not persuaded Mr Brereton’s conduct was either infamous conduct in a professional respect or misconduct in a professional respect.  Mr Brereton did not agree with the Board’s submission that the Tribunal could find, as a matter of common sense, a nexus between his offending and his nursing practice.  The Board argued the Tribunal could assume the nexus, given the possibility he might have drawn on his nursing knowledge or skills in producing illicit drugs.

3. In the absence of any particular evidence that Mr Brereton drew upon his education or resources as a nurse, the Tribunal views this submission as speculative.  Although conduct in a person’s private life may well constitute infamous conduct in a professional respect or misconduct in a professional respect, the other limbs of the definition of unsatisfactory professional conduct[3] are more apt in this case.

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

The Tribunal’s views on sanction

1. When these events occurred, Mr Brereton was not fit to practise.  While using, and apparently addicted, to illicit drugs, and while illegally manufacturing them, he continued to work as a nurse.  Professionally, he was well-regarded, but this does not mean he presented no risk given his drug use.

2. In this case, as in others of this nature, there is a contest between the parties about whether the practitioner was an addict or merely a user at the relevant time.  Because the parties have agreed on what they consider an appropriate sanction, strictly speaking the Tribunal does not have to resolve the issue.  However, because this is a recurring point of conflict between the Board and practitioners charged with drug use, it is useful for the Tribunal to make some observations for the guidance of parties.

3. Mr Brereton provided a report by Dr Rowan, an Addiction Medicine Physician prepared some two and half years after the conduct.  Dr Rowan did conclude that Mr Brereton was suffering from a substance dependency disorder at the time of his arrest.  It is clear, however, that he relied solely on information from Mr Brereton to draw that conclusion.

4. In the absence of contemporaneous evidence about a practitioner’s drug use, an assessment based solely on self-report so long after the event is of little assistance to the Tribunal.  However, where the contest is material to the outcome in the proceedings, the Tribunal must carefully assess all relevant evidence.

5. In this case, the Board has drawn to the Tribunal’s attention a germane, but not decisive factor: that evidence of this nature is relevant to and could have been provided at the time of sentence, but was not.

6. Nevertheless, there is contemporaneous evidence of Mr Brereton’s use, albeit somewhat tenuous.  The Police Brief records Mr Brereton’s statement that he cooked every 2 to 3 days, yet the prosecution asserted the enterprise was primarily for personal use.  The Tribunal can infer the police reached this conclusion on their assessment of the evidence gathered during their investigation.

7. Accepting Mr Brereton’s statement about how often he cooked (which the Board has urged the Tribunal to take into account against Mr Brereton), such regular production for largely personal use sits comfortably with Mr Brereton’s statement to Dr Rowan that he was using the drug daily.  Given Mr Brereton’s education and apparent competence as a nurse, his high-risk behaviour in continuing to produce while on bail for production offences is consistent with the impaired judgement of an addict rather than either stupidity or criminality.  

8. Were it to matter to sanction, in this case, the Tribunal would accept that Mr Brereton was addicted at the time of the offences.

9. Since conviction, there are strong indications of Mr Brereton’s rehabilitation.  He served his period of imprisonment without apparent incident.  By now, he will have completed his sentence on parole.  He complied with his reporting requirements.  Random urinalysis testing when on parole and a hair follicle drug screen in October 2010 detected no illicit substances.  Mr Brereton has completed a rehabilitation program.  He has worked as a labourer since shortly after his release from prison.  His employer provided an articulate and measured reference in support of his character.

10. Mr Brereton surrendered his registration before he was convicted of the offences.  This indicates he understood, then, that he was not fit to practise.  He has not sought to persuade the Tribunal that he should return to nursing yet.  He is willing to undertake further study and health assessment.  These are all indications that Mr Brereton well understands the connection between his personal conduct and his professional responsibilities, a positive sign for his eventual return.

11. Mr Brereton has not been registered as a nurse since November 2008, a period of almost 3 years.  He already faces further training and assessment, as, soon, he will not be able to demonstrate continuity of practice.

12. Mr Brereton is guilty of very serious offences and his conduct justifies a substantial preclusion period.  However, the Tribunal considers that period should take some account of the period since Mr Brereton surrendered his registration.  If he is precluded for a further 4 years from now, he would have been deregistered for almost 7 years.  That seems unnecessarily harsh.  It is not supported by the authorities relied on by the Board.

13. Further, the agreed conditions relate only to the requirements he must meet before registration.  Accepting his own account of his history of drug use, the Tribunal considers there is a future risk that the proposed orders have not addressed.  Dr Rowan has proposed monitoring and reviews by an appropriate specialist.

14. The Tribunal is considering imposing a shorter preclusion period but adding post-registration conditions for a regime of therapy and 3-monthly random drug screening for the first year Mr Brereton is registered as a nurse.  The Tribunal is conscious the parties agreed the proposed penalty some months ago.  Given the Tribunal has in mind imposing quite different orders to those proposed, it will afford the parties an opportunity to make concise written submissions about the following questions:

a)     How should the Tribunal take into account the period since Mr Brereton surrendered his registration in determining the preclusion period?

b)     What form could the proposed post-registration conditions for drug therapy and monitoring conditions on Mr Brereton’s future registration as a nurse take?