Nursing and Midwifery Board of Australia v Buckley
[2010] QCAT 392
•16 August 2010
| CITATION: | Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| Michael Buckley (Respondent) |
APPLICATION NUMBER: OCR 025-10
| MATTER TYPE: | Occupational Regulation matters |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham |
DELIVERED ON: 16 August 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Mr Buckley is reprimanded.
2. Mr Buckley may not reapply to be enrolled or registered as a nurse or to be authorised to practice nursing for a period of two years from today.
3. In addition, Mr Buckley may not apply until he has fulfilled the following conditions:
(a) Mr Buckley must undergo an assessment by a psychiatrist or psychologist approved by the Board.
(b) The attending practitioner must be briefed by the Board.
(c) The assessment must consider whether Mr Buckley suffers from any impairment and must assess Mr Buckley’s fitness to practice, given the nature of his offence.
(d) Mr Buckley must undergo the treatment recommended by the attending practitioner.
(e) Mr Buckley must bear the costs of the assessment and treatment, including the costs of a report to the Board.
(f) Mr Buckley must participate in two counselling sessions with an ethics adviser approved by the Board to develop and reinforce his understanding of professional responsibilities and reputation and the implications of personal conduct for professional reputation and public confidence in the profession.
(g) Mr Buckley must bear the cost of those counselling sessions.
| CATCHWORDS : | HEALTH PRACTITIONER – GROUND FOR DISCIPLINARY ACTION – Where registrant convicted of indictable offence – where disciplinary action not contested – where registrant no longer registered – whether condition should be imposed upon re-registration. Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 s123 Health Practitioners (Professional Standards) Act 1999 ss 405P(1), 405P(3) 405P(5) Nursing Act 1992 ss 54(3)(a) 104(1)(g) Queensland Civil and Administrative Tribunal Act 1999 s100 Good v The Medical Board of Western Australia (Anderson J, Supreme Court of Western Australia 6 December 1994) at p17; considered Health Care Complaints Commission (HCCC) v Gillett [2007] NSWNMT 7; considered In Re Davis (1947) 75 CLR 409; applied Medical Board of Queensland v Tarvydas [2010] QCAT 246; distinguished Re Liveri [2006] QCA 152; applied |
REASONS FOR DECISION
Mr Buckley is a nurse. In September 2009 he was convicted of the criminal offence of downloading child pornography.[1] Shortly afterwards, the Nursing and Midwifery Board of Australia[2] commenced disciplinary proceedings against him under the Nursing Act 1992.[3]
[1] Mr Buckley was convicted and sentenced in the Magistrates Court at Caloundra on 23 September 2009 of the offence of using a carriage service, namely internet, to access material, namely computer images depicting children when the said material was child pornography material, contrary to Criminal Code Act 1995 (Commonwealth) s 474.19(1) (6 months imprisonment released on $5,000 recognisance provided the offender is of good behaviour for 2 years).
[2] Health Practitioners (Professional Standards) Act 1999 s 405P(3)
[3] Health Practitioners (Professional Standards) Act 1999 ss 405P(1), 405P(5) definitions of disciplinary proceeding and existing QCAT proceeding, 405L definitions of amending Act and repealed health practitioner registration Act
Disciplinary action may be taken under that Act if a nurse has been convicted of an indictable offence, as this one was.[4] Mr Buckley possessed on his computer approximately 10,000 images of child pornography. The least serious were images of children under 16 who were naked or in a sexual pose. The most serious were images of sexual penetration of children. Mr Buckley pleaded guilty and was sentenced to 6 months imprisonment, but was released on the requirement that he was of good behaviour for 2 years.
[4] Nursing Act 1992 S104(1)(g)
Mr Buckley has not resisted the action brought by the Board to discipline him. He is no longer enrolled, having allowed his registration to lapse after he was charged with the offence. He has informed both the Board and the Tribunal that he does not intend to return to nursing and has no wish to be involved in these proceedings. On that basis, the Tribunal proceeded without an oral hearing on the uncontested material filed by the Board and its written submissions.
The offence does not relate to Mr Buckley’s technical competence as a nurse. Nor does it involve a breach of his professional ethics, such as inappropriate conduct towards his patients. However, the crime is a serious matter. The children depicted in the images are the victims of an insidious industry. By downloading them, Mr Buckley has participated in their degradation. His offence goes to his character and, as such, is relevant to his fitness to practice.
His offence has the potential to reflect adversely on the standing of the profession in the eyes of patients and the public.[5] A nurse frequently attends on a patient without supervision, particularly in the capacity in which Mr Buckley worked, providing in-home care. A great deal of trust is placed in a nurse by the patient, their family members and other medical professionals. Conduct which casts doubt on a person’s trustworthiness challenges their fitness to occupy such a position of trust.
[5] In Re Davis (1947) 75 CLR 409
Mr Buckley’s fitness to practice must be assessed at the hearing.[6] He has put forward no information. The only evidence before the Tribunal establishes that Mr Buckley is unfit to be registered to practice as a nurse.
[6] Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 9-10
Had Mr Buckley still been enrolled, the Board would have sought an order to cancel his enrolment. The Tribunal would have made that order.
The Board submitted, also, that Mr Buckley should be precluded from reapplying for 2.5 to 3 years.
In similar circumstances involving a nurse in New South Wales,[7] a 2 year preclusion period was imposed on the nurse. The Board submitted Mr Buckley’s case calls for a greater sanction for two reasons.
[7] Health Care Complaints Commission (HCCC) v Gillett [2007] NSWNMT 7
Firstly, Mr Buckley was not entirely candid in his interview with police and sought to minimise the seriousness of his offending. Whilst that is a fair assessment on the transcript, it is not unusual for an offender in a first interview to be less than completely honest in their account. There can be many reasons for that. Mr Buckley did co-operate in the administration of justice. He entered a plea of guilty at a fairly early stage of proceedings. His co-operation was reflected in the penalty imposed by the criminal court.
Secondly, the Board argued Mr Buckley’s failure to engage in these proceedings warrants a lengthier preclusion period. The Board says his non-engagement indicates a lack of insight and remorse. These are important considerations in assessing a practitioner’s fitness to practice.[8]
[8] Re Liveri [2006] QCA 152; Good v The Medical Board of Western Australia (Anderson J, Supreme Court of Western Australia 6 December 1994) at p17
I am not persuaded Mr Buckley’s failure to engage indicates a lack of insight or remorse. There is nothing in the statements that he made to the Board or to officers of this Tribunal to indicate that. His decision to play no part in these proceedings is consistent with his decision not to contest the charge. His conduct did not increase the costs of the Board. Indeed, because Mr Buckley was clear to the Tribunal about his wish to take no active part, the Tribunal was able to proceed in a quick and cost effective manner which minimised the costs to the Board.
It would be different if his non-participation resulted in the Board being put to proof of the facts upon which the disciplinary proceedings were brought. Here the Board acted on a criminal conviction which arose from Mr Buckley’s own plea and which established the ground for disciplinary action.[9]
[9] cf Medical Board of Queensland v Tarvydas [2010] QCAT 246
Mr Buckley did not avoid these proceedings; he chose not to contest the Board’s case. Mr Buckley has not worked as a nurse since his enrolment expired in June 2008, more than 2 years ago. A preclusion period of 2 years would mean he could not return to work until more than 4 years after his apprehension on the charge. I see no warrant to impose a lengthier preclusion period than I might have done otherwise. Mr Buckley will be precluded from applying to become registered for a period of 2 years from the date of this order.
The Board suggested Mr Buckley may suffer from an impairment that could affect his ability to carry out his duties as an enrolled nurse without endangering a patient in his care.[10] It relied on a report of Penny Gordon, psychologist, who concluded that Mr Buckley’s pattern of behaviour (in downloading the images and in his conversations with police) is suggestive of an underlying impairment in the area of sexual addiction or compulsivity or both.
[10] Nursing Act 1992 s54(3)(a)
Ms Gordon did not consult with Mr Buckley. Her report is based on the police brief, including the transcript of conversations with the police when they executed a search warrant and when they interviewed him.
That is not a sound basis for diagnosis. On my reading of her report, Ms Gordon did not purport to do so. Rather, she identified factors which suggested to her that the possibility of impairment should be properly assessed.
In the end, I have placed little weight on Ms Gordon’s report in formulating the conditions upon which Mr Buckley may apply to be registered after the preclusion period has expired. The nature of the offence itself demands that Mr Buckley address two factors in any future application.
Firstly, given his conviction, he must address concerns about his character. The Board would look for evidence of his rehabilitation, including remorse for his actions, his appreciation of the impact of child pornography on the victims of the crime and his understanding of the way in which his personal conduct can impact on the standing of his profession.
Secondly, because of the personal and intimate contact a nurse has with their patients, the Board would be concerned about what risk Mr Buckley might present to patients in his care.
I have formulated conditions intended to direct Mr Buckley’s efforts accordingly and to provide the Board and the community with some level of comfort about Mr Buckley’s future conduct.
The Board seeks an order that Mr Buckley bear its costs. This application was commenced under the Nursing Act, since repealed by legislation to implement a national scheme to regulate medical practitioners.[11] The effect of transitional provisions is that this matter must be dealt with as if the Nursing Act had not been repealed.[12] Accordingly, the question of costs is governed by s116(4) of the Nursing Act. It provides:
The tribunal may make any order about costs it considers appropriate to a maximum amount equivalent to 135 penalty units.
[11] Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 s123
[12] Health Practitioners (Professional Standards) Act 1999 ss 405P(1)
The Nursing Act did not establish a no-costs tribunal process.[13] Costs were at the discretion of the Tribunal, subject to the cap. The Board has succeeded in proceedings brought to further its functions of maintaining professional standards and reputation and protecting the public. It is appropriate to order Mr Buckley pay the Board’s costs.
[13]Contrast Queensland Civil and Administrative Tribunal Act 1999 s 100
The Board has sought an order for costs on an indemnity basis because Mr Buckley failed to participate in these proceedings. It is true that Mr Buckley did not comply with the Tribunal’s order to file his statements of evidence.[14] This is not surprising given his decision not to contest the charge. No person can be required to give or call evidence in their case. He bore the consequence that the Board’s material was uncontested. An order for costs on an indemnity basis is not justified.
[14] Directions made on 16 March 2010
Upon the Board providing a statement of its costs in this matter, the Tribunal will make an order for costs as fixed or assessed.
I order:
1. Mr Buckley is reprimanded.
2. Mr Buckley may not reapply to be enrolled or registered as a nurse or to be authorised to practice nursing for a period of two years from today.
3. In addition, Mr Buckley may not apply until he has fulfilled the following conditions:
(a) Mr Buckley must undergo an assessment by a psychiatrist or psychologist approved by the Board.
(b) The attending practitioner must be briefed by the Board.
(c) The assessment must consider whether Mr Buckley suffers from any impairment and must assess Mr Buckley’s fitness to practice, given the nature of his offence.
(d) Mr Buckley must undergo the treatment recommended by the attending practitioner.
(e) Mr Buckley must bear the costs of the assessment and treatment, including the costs of a report to the Board.
(f) Mr Buckley must participate in two counselling sessions with an ethics adviser approved by the Board to develop and reinforce his understanding of professional responsibilities and reputation and the implications of personal conduct for professional reputation and public confidence in the profession.
(g) Mr Buckley must bear the cost of those counselling sessions.
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