Nursing and Midwifery Board of Australia v Brereton (2)

[2011] QCAT 579

CITATION: Nursing and Midwifery Board of Australia v Brereton (No 2) [2011] QCAT 579

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

APPLICATION NUMBER:   OCR173-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

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

DELIVERED ON: 21 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    Mr Brereton is not entitled to apply for registration under the Health Practitioner Regulation National Law until:

1.1   28 September 2012 (a period of 4 years from the date Mr Brereton surrendered his registration);

1.2   Mr Brereton has completed a tertiary level course of education, which addresses professional ethics, accountability and responsibility and the relationship between personal conduct and professional standards.  Mr Brereton must nominate the course (in writing) for approval by the Board.  Mr Brereton must complete the course no earlier than one year prior to applying for registration; and

1.3   Mr Brereton has undergone a health assessment by a psychiatrist, nominated by him (in writing) and approved by the Board.  The assessment must take place no more than 3 months before Mr Brereton applies to be registered.  The Board must brief the psychiatrist and Mr Brereton must authorise the psychiatrist to provide a report to the Board about Mr Brereton’s fitness and competence to practise and to recommend to the Board any further conditions of registration.

2.    The Board must impose the following conditions on Mr Brereton’s registration, effective for a period of 12 months during which Mr Brereton holds active employment as a nurse:

2.1   Prior to commencing employment as a nurse, Mr Brereton must commence treatment with a psychiatrist specialising in addiction medicine for treatment of drug addiction.  The treatment must incorporate random drug screening at a frequency of not less than every 3 months as determined by the psychiatrist.

2.2   Mr Brereton must nominate the psychiatrist for approval (in writing) by the Board.

2.3   Prior to commencing treatment, Mr Brereton must provide the psychiatrist with the Tribunal’s reasons, these orders and the report of Dr Christian Rowan dated 24 November 2010.

2.4   Mr Brereton must participate in treatment at the frequency and for the duration determined by the psychiatrist.  He must comply with any directions given by the psychiatrist.

2.5   Within seven days of commencing treatment, Mr Brereton must provide the following authorisations (in writing):

2.5.1   To the psychiatrist to report to the Board:

(a)  As the psychiatrist sees fit, or as requested by the Board, as to Mr Brereton’s ability to safely and competently practise nursing; and

(b)  Immediately, if Mr Brereton returns a positive drug screen; and

2.5.2   To the Board, to advise Mr Brereton’s employer if the psychiatrist notifies the Board of any concerns about Mr Brereton’s ability to safely and competently practise nursing.

2.6   Within two business days of gaining employment as a nurse, Mr Brereton must notify the Board (in writing) of the following:

2.6.1   The name and address of the employer;

2.6.2   The address of his place of employment as a nurse; and

2.6.3   The position description at his place of employment.

2.7   Within two business days of any change in those details, Mr Brereton must notify the Board (in writing) of the change.

3.    Mr Brereton must bear any costs associated with complying with these orders.

4.    Mr Brereton must pay the Board’s costs of and incidental to these proceedings fixed in the sum of $4,000 within 30 days of these orders (or such further time as the Board may allow).

CATCHWORDS:  DISCIPLINARY – Nurse – disciplinary orders – whether period registration voluntarily surrendered should be taken into account in fixing the preclusion period – form of orders for post-registration treatment and monitoring

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 Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 11 October 2011, the Tribunal published reasons stating its findings in relation to disciplinary proceedings against Mr Brereton.  The Tribunal deferred finalising orders until hearing further from the parties on two matters.

2. Firstly, the Tribunal invited the parties to make submissions about whether the Tribunal should take into account the period since Mr Brereton surrendered his registration in determining the period during which he may not apply for registration.

3. The Board accepted this approach was open to the Tribunal, but requested the Tribunal to make that apparent in its reasons.  It also argued the totality of the preclusion period (including the period since Mr Brereton surrendered his registration) should be sufficient to mark the Tribunal’s disapproval of Mr Brereton’s offending.

4. Mr Brereton supported accounting for the period of voluntary surrender, but argued for a total preclusion period which did not exceed 3 years.  The Tribunal does not accept that is an adequate condemnation of Mr Brereton’s serious misconduct.

5. The orders will have the effect that Mr Brereton may not apply for registration until a period of 4 years has elapsed from the date on which he surrendered his registration.

6. The Tribunal also invited the parties to make submissions about the form of post registration conditions for drug therapy and monitoring on Mr Brereton’s return to nursing.

7. Both parties agreed such conditions had utility.  The Board prepared a set of conditions, largely accepted by Mr Brereton.  They provide for drug addiction treatment by a psychiatrist specialising in addiction medicine; random drug screening; and reporting to the Board and, if there is a concern about his fitness to practise, to Mr Brereton’s employer.

8. The Board proposed conditions that applied for the first 12 months of active nursing.  Mr Brereton preferred to link the period to the date he secures registration.  The Tribunal has determined the period should relate to active nursing not registration.  The Tribunal intends the conditions to monitor and support Mr Brereton in the workplace, not while he is registered but not working as a nurse.

9. Mr Brereton also proposed assessment, not treatment, for drug addiction and allowing the psychiatrist to implement random drug testing less frequently or for a shorter period.

[10]  The Tribunal adopts the conditions proposed by the Board as appropriate for managing the risk that Mr Brereton might present to patient safety and providing assurance the public will be protected.

[11]  The orders provide for a lengthy preclusion period (four years from the date Mr Brereton surrendered his registration), pre-registration education and health assessment and post-registration treatment and monitoring.  The Tribunal considers the orders properly denounce Mr Brereton’s conduct, will assist him to rehabilitate from drug abuse and will protect patients and the public.