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

CITATION:

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

PARTIES:	Nursing and Midwifery Board of Australia (Applicant)
v
FH (Respondent)

APPLICATION NUMBER:

OCR063-10

MATTER TYPE:

Occupational Regulation

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham
(Deputy President)
Assisted by:
Ms S Johnson
Ms D Moen
Mr A Urquhart

DELIVERED ON:

1 December 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent is prohibited from re-applying for registration, or applying for enrolment or an authorisation to practice nursing, until:

(i) 8 years from the date of these orders; and

(ii) A report has been provided to the applicant by a psychiatrist (nominated by the respondent and approved in writing by the applicant) which assesses whether the respondent is then fit and competent to practice, given the conduct the subject of these proceedings.

2. The costs of complying with order 1 must be borne by the respondent.

3. The respondent must pay the applicant’s costs of these proceedings, assessed on the standard basis against the District Court scale.

CATCHWORDS :

DISCIPLINARY – Nurse – Convictions for sexual offences – misrepresentation in application to renew registration – where offences occurred more than 17 years ago, did not involve a patient and where there was no evidence of impropriety in his practice as a nurse; whether preclusion period of 8 years an adequate sanction.

Evidence Act 1977 s79(2)(3)

Health Practitioners (Professional Standards) Act 1999 ss 405L, 405P(1), s405P(5)

Nursing Act 1992 ss 54(3A),102D, 104A(g), 104A(i), 116(h)

Re Hampton [2002] QCA 129 followed

Nursing and Midwifery Board of Australia, Recency of Practice Registration Standard

REASONS FOR DECISION

FH was registered as a nurse in Queensland in April 1994, based on recognition of his status as a registered nurse in Victoria. He had trained in England and, on arrival in Australia, worked as a psychiatric nurse in Melbourne. In 2002 he moved to Queensland and worked as a psychiatric nurse, first at Wolston Park and then at the Mater Hospital.
FH surrendered his registration in September 2009[1], two months after he was convicted, in Victoria, of 3 counts of indecent assault and 1 count of rape. The total effective term of imprisonment imposed for those offences was 4 years 8 months with a minimum of 2 years to be served before he is eligible for parole. FH remains in custody in Victoria.
[1]Whilst he is no longer registered, the conduct alleged against FH took place while he was registered and the Tribunal has jurisdiction to deal with the matter. Nursing Act 1992 s 102D
His offending occurred over a 3 year period between February 1989 and January 1992. His victims were two nieces, then young adults, staying in FH’s home. They and their parents had placed their trust in him as a member of their family. He was then in his early 40s and took advantage of the young women for his personal gratification. The offences were opportunistic and occurred against a backdrop of strained marital relations due to work and family commitments.
It was some time before complaints were made (2002) and there was a substantial further delay before FH was interviewed by police (2007). He then denied the allegations. The complainants were required to give evidence at a contested committal hearing in June 2008. By June 2009 he had indicated his intention to enter pleas to the charges, which he did on 17 July 2009.
At the time he was sentenced he had been working as a psychiatric nurse for 38 years. The complainants are relatives and were not his patients. There is no evidence of any misconduct in the direct practice of his profession. Nor is there any evidence of other offending in the more than 17 years between the offences and the convictions. FH’s nursing career has been stable and it might be expected that, if there were concerns about his practice, this would have become known.
These proceedings commenced under the Nursing Act 1992, since repealed. The effect of transitional provisions in the Act which repealed the Nursing Act is that these proceedings continue to be dealt with as if the Nursing Act had not been repealed.[2]
[2]Health Practitioners (Professional Standards) Act 1999 ss 405P(1); s405P (5) definitions of existing QCAT proceeding; registration proceeding and relevant Act; s405L definitions of amending Act and repealed health practitioner registration Act
The Board brings these proceedings on two grounds:

i) The convictions; and

ii) A false statement on his application to renew his registration and failure to disclose the charges.

A conviction for an indictable offence, which these offences are, constitutes a ground for disciplinary action[3]. The admissions constituted by the pleas may be relied on as proof of the conduct for which the charges were laid[4].
[3] Nursing Act 1992 s104A(g)
[4] Evidence Act 1977 s79(2)(3)
FH made the false statement in his application to renew his registration, on 3 June 2009. By that time, the committal hearing had occurred and FH had indicated his intention to plead guilty to the charges. He faced a sentencing hearing within 6 weeks. He applied to renew his registration as a nurse in Queensland without disclosing the charges. More egregious was his false statement in his application that he had never been charged with an offence in Queensland or elsewhere. That actively misled the Board about a matter the Board may consider in considering whether the applicant is fit and competent to practice[5].
[5] Nursing Act 1992 s54(3A)
The criminal history of an applicant for registration is a material consideration for admission to any profession. Criminal offending necessarily raises questions about the applicant’s fitness to practice.
Honesty is a fundamental component of professional ethics. Applicants owe a duty of good faith, candour and comprehensive disclosure of any matter that might reasonably bear on the assessment of their fitness to practice[6]. FH’s active misrepresentation undermines other evidence before the Tribunal that could, otherwise, have supported a submission that he had been rehabilitated since the offences occurred. For instance, FH has committed no further offences for a lengthy period.
[6] Re Hampton [2002] QCA 129
FH is incarcerated but has done what he can to cooperate in these proceedings. The Tribunal has received what are called joint submissions. They set out the findings the Tribunal should make, the factors that are relevant to penalty and the orders that should be imposed. It is evident from other material provided by the parties that the submission might better be considered as one made by the Board that FH has chosen not to actively contest. While he has signed the submissions, he has also sent correspondence to the Board which contests key elements of the Board’s submissions on penalty, in particular the preclusion period.
The view I have taken of the material provided by the parties is that FH is aware of but does not actively contest the Board’s submissions. FH’s cooperation in not contesting the proceedings is noted and taken into account in determining the sanction that should be imposed.
But for FH’s actions when he sought to renew his registration, he would have faced a different penalty than the one that will now be imposed. His offences, although most serious, occurred many years earlier.
Sexual offending raises an extra dimension for psychiatric nurses, even when the complainant is not a patient. Patients suffering mental health conditions are vulnerable and, for certain conditions, the patients may present as highly sexualised. Careful observation of boundaries is, therefore, of particular importance.
Nevertheless, FH’s offences did not involve a patient or any breach of professional boundaries. The only evidence placed before the sentencing judge suggested, to the extent these matters may be assessed, that he represented little risk of re-offending. There was evidence that he had been placed in a position of trust in the intervening years, in both his personal and professional life, without any hint of impropriety.
There is considerable force in the Board’s submission, though, that FH does not have insight about his conduct, nor does he appear to be genuinely remorseful about the impact of his offending on the complainants. In his lengthy statement to the court and during his consultation with his psychologist whose report was tendered to the sentencing judge, the concerns he expressed were, primarily, about the impact of the convictions on himself and on his family.
The false statement in his renewal application tends to reinforce the impression created by that evidence, that FH does not genuinely accept responsibility or feel remorse for these offences.
There can be no argument that FH’s conduct was of a lesser standard than might reasonably be expected by the public and his peers. He committed serious criminal offences. Further, he sought to actively mislead the Board about them in order to maintain the privilege of his right to practice his profession.
His offences and misrepresentation were both shameful and fell substantially short of what could be reasonably expected of a professional. FH engaged in infamous conduct in a professional respect and misconduct in a professional respect. FH’s conduct is unsatisfactory professional conduct in each of the respects alleged by the Board. He is not currently fit to practice.
The parties have proposed orders for the Tribunal’s consideration. They include imposing a period of 8 years before which FH is entitled to apply to be registered, enrolled or authorised to practice nursing. That is a very lengthy period. FH is 61 years old. The effect of the order will be to prevent him from working again as a nurse.
The purpose of disciplinary proceedings is not punitive, the sanction imposed is intended to uphold professional standards and maintain public confidence in the profession. It is not intended to replicate or supplement the punishment imposed through the criminal justice system, although that may be the impact of the sanction on the practitioner. The sanction is addressed not just to FH but also to deter other practitioners who might offend in a similar way.
Longer preclusion periods have been imposed for sexual offending against minors,[7] however it is fair to say 8 years is a lengthy period if it relates only to the sexual offending given it is dated, does not involve a patient and was followed by a lengthy period of nursing without disciplinary action or complaint. Had that been the extent of FH’s disciplinary offence, I would have been minded to impose a preclusion period of 5 years. The effect of that sanction would have been that he could not have resumed practice without his competence being assessed[8]. That could well have involved further tertiary training.
[7]Decisions of the former Queensland Nursing Tribunal: In the Matter of Casey (7 of 2001) – 10 years; In the Matter of Paxevanos (1 of 2003) – 15 years and In the Matter of Ringelstein (5 of 2008) – 15 years.
[8] Nursing and Midwifery Board of Australia, Recency of Practice Registration Standard practice registration standard
A further 3 years preclusion period is justified by FH’s false declaration about the criminal charges. That conduct demonstrates either that FH had little regard for the seriousness of the offences he was about to plead guilty to or that he held the registration process in contempt, or both.
The statutory declaration goes to a fundamental issue for registration as a nurse, the applicant’s fitness to hold a position of significant trust. It is a key component of the protective function of registration. The importance of accurate and comprehensive disclosure is reflected in the significant penalty the Tribunal has imposed on FH.
It must be acknowledged that, given his age (now 61), the 8 year preclusion period and the need for FH to demonstrate his competence to resume practice, it is most unlikely that FH will work as a nurse again. If he did apply, this order imposes a further requirement that he provide a psychiatric assessment of his fitness to practice that takes account of his past offending. FH must bear the costs of that assessment and, also, the costs of these proceedings.
The Tribunal is satisfied the orders jointly proposed by the parties are appropriate sanctions for the conduct admitted by FH and are adequate to fulfil the purposes of these proceedings.