Nursing and Midwifery Board of Australia v Brocklehurst

[2011] QCAT 71

CITATION: Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71

PARTIES:	Nursing and Midwifery Board of Australia (Applicant)
v
Sheila Mary Brocklehurst (Respondent)

APPLICATION NUMBER:   OCR114-10

MATTER TYPE: Occupational Regulation

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by:
Mr Alan Barnard
M Kai Dahl
Ms Elizabeth Robertson

DELIVERED ON:      8 March 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Respondent is reprimanded.

2.    The Respondent’s registration is suspended for a period of 3 months, but that suspension shall be suspended after 1 month for a period of 2 years during which the respondent must not be the subject of any disciplinary action by the Tribunal or the Applicant if the respondent is to avoid being dealt with for the suspended decision.

3.    The Respondent will pay the Applicant’s costs of and incidental to these proceedings fixed in the amount of $6,000 within 6 months from the date of these orders.

CATCHWORDS : 

DISCIPLINARY – Nurse – where academic transcript contained error – where registrant altered transcript – where registrant submitted altered transcript to the Board on 2 occasions – whether intention of registrant dishonest

Health Practitioner Regulation National Law Act 2009, ss 225, 289(4)

Nursing Act 1992, ss 104A(3)(a)-(b)

Adamson v Queensland Law Society Incorporate [1990] 1 Qd R 498

In the matter of Webb – Queensland Nursing Tribunal matter 2 of 2007

Nursing and Midwifery Board of Australia v FH [2010] QCAT 675

Re Hampton [2002] QCA 129

REASONS FOR DECISION

1. Ms Brocklehurst trained and qualified as a nurse in the United Kingdom.  In April 2008, she applied for registration as a nurse in Queensland with an endorsement for midwifery.  Ms Brocklehurst was appropriately trained, experienced and eligible for both registration as a nurse and endorsement as a midwife.  She was registered as a nurse in September 2008.  Her application for endorsement as a midwife was still under assessment.

1. When she applied for endorsement as a midwife, she submitted an uncertified academic transcript from the University of York.  It contained three errors in the record; significantly understating the number of her attendances on or observations of relevant procedures.

1. At the request of the Board, Ms Brocklehurst provided a certified copy of the transcript which she admits she altered to correctly state the number of attendances for one procedure but overstated attendances for the other two.  When the two documents are compared, the conclusion is unavoidable that Ms Brocklehurst changed the original numbers to like – shaped numbers, in order to avoid attention being drawn to the alterations.

1. In January 2010, Ms Brocklehurst was asked to provide the original copy of her transcript.  Once again she submitted an altered transcript.

1. The disciplinary proceedings are based on the two acts of submitting an altered academic transcript in support of her endorsement application.

1. While the parties are agreed on those facts that can be established objectively, they do not agree about her motivation in providing the altered transcript a second time.  The Board argues the Tribunal should infer a dishonest intent to mislead the Board on both occasions.  In part, it based that submission on the uncontested evidence of an officer of the Board about Ms Brocklehurst’s attendance at the Board’s premises when she produced the altered document in person.

1. Submissions made on Ms Brocklehurst’s behalf take issue with the officer’s account of that encounter, but Ms Brocklehurst has not gone into evidence about the matter.  In the submissions, her lawyers ask the Tribunal to take a different view of that attendance and accept that it was responsive to the Board’s request.  Presumably the inference the Tribunal is asked to draw is that this was not an active attempt to further deceive the Board.

1. The letter from the Board in January 2010 is clear enough on its face.  The transcript was sought in connection with her application which was still being assessed.  The fine distinction that Ms Brocklehurst’s lawyers seek to draw is specious.  It suggests that, even now, Ms Brocklehurst has not fully accepted her obligation of candour in her dealings with the Board.  She cannot reasonably argue that re-presenting an altered document is anything other than a repetition of her earlier attempt to mislead the Board.  Had she seriously wished to maintain that position, she could have gone into evidence on the point.

1. There is no argument that her conduct amounts to unsatisfactory professional conduct.[1]  Honesty is a fundamental component of professional ethics.[2]  Applicants owe a duty of good faith, candour and comprehensive disclosure.[3]  She has failed to fulfil that duty on two occasions.  Her conduct falls below what could reasonably be expected of her by the public and her peers.[4]  The Tribunal is also satisfied that it is misconduct in a professional respect[5] because it falls short of, to a substantial degree, the conduct observed or approved by members of the profession of good repute.[6]

   [1]Nursing Act 1992, s 104A(3). These proceedings were commenced under the Nursing Act 1992 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) Act 1999, ss 405P(1) and 405P(5) Definitions of existing QCAT proceeding; registration proceeding in relevant Act; s 405L Definitions of amending Act and repealed Health Practitioner Registration Act.

   [2]       Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 at [11].

   [3]Re Hampton [2002] QCA 129 at [26].

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

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

   [6]Adamson v Queensland Law Society Incorporate [1990] 1 Qd R 498 at 507.

1. Ms Brocklehurst’s conduct gives rise to a reasonable concern that she might, in the future, feel justified in altering other records if she thinks them to be inaccurate.  Given the critical role that patient observations play in patient care, respect for the integrity of an official record is vital, even if inaccurate.  The appropriate course for dealing with an inaccurate record is take steps to have it corrected, not to take that responsibility upon oneself.  Ms Brocklehurst could have and has not explained why she did not simply draw the matter to the Board’s attention and take the necessary steps to correct the official record.  That was the appropriate course for her to adopt.

1. In this case there is no question Ms Brocklehurst was eligible to apply for endorsement as a midwife.  The public was not at risk of a nurse insufficiently experienced being endorsed as a midwife.  That is a matter the Tribunal has taken into account in accepting the parties’ joint submission as to penalty.

1. Ms Brocklehurst recklessly disregarded the importance of the registration process.  However, she has since co-operated in these proceedings.  She has voluntarily and at her own expense, undertaken a program on professional ethics offered by Dr McIntosh.  The reprimand and suspension will be noted in the National Register of Practitioners.[7]

   [7]Health Practitioner Regulation National Law Act 2009, ss 225, 289(4).

1. The period of suspension has been set taking into account those considerations.  The Tribunal has been referred to other cases in which longer periods have been set.  They are distinguishable on their facts.[8]

   [8]Nursing and Midwifery Board of Australia v FH [2010] QCAT; In the matter of Webb – Queensland Nursing Tribunal matter 2 of 2007.

1. The Tribunal is satisfied the following orders adequately denounce Ms Brocklehurst’s conduct and provide for a sufficient period during which Ms Brocklehurst is at risk of further consequences for her conduct.

1. The orders are:

1.      The Respondent is reprimanded.

2.      The Respondent’s registration is suspended for a period of 3 months, but that suspension shall be suspended after 1 month for a period of 2 years during which the respondent must not be the subject of any disciplinary action by the Tribunal or the applicant if the respondent is to avoid being dealt with for the suspended decision.

3.      The Respondent will pay the applicant’s costs of and incidental to these proceedings fixed in the amount of $6,000 within 6 months from the date of these orders.