Nursing and Midwifery Board of Australia v Hundy

[2013] QCAT 691

CITATION: Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691

PARTIES:	Nursing and Midwifery Board of Australia (Applicant)
V
Angela Lea Hundy (Respondent)

APPLICATION NUMBER: OCR388-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judicial Member Brabazon QC
Assisted by:  Ms Jennifer Ashton, Ms Carole Crack, Mr David McKenzie

DELIVERED ON: 11 December 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Ms Hundy’s conduct with respect to the undertaking of 23 February 2011 amounts to “unprofessional conduct” as defined in s 5 of the Health Practitioner National Law Act 2009.

2.    Ms Hundy is reprimanded.

3.    Ms Hundy’s registration is suspended for a period of 3 months, but that suspension shall be wholly suspended for a period of 9 months during which Ms Hundy must not be the subject of any disciplinary action by the Tribunal or the Board if she is to avoid being dealt with for the suspended decision.

4.    Ms Hundy must provide a written authority to her employer, within 7 days of receiving these orders, to provide a written report to the Board about her ability to practise competently and safely (particularly having regard to issues of honesty) at intervals of 3 months from the date of these orders for a period of 9 months.

5.    No order as to costs.

CATCHWORDS: HEALTH PRACTITIONER – DISCIPLINARY PROCEEDINGS – Nursing and Midwifery – undertaking not complied with –reprimand

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 Act 2009 (QCAT Act).

REASONS FOR DECISION

1. In this case, the parties have agreed about the facts and documents, and have made a joint submission on sanction.  Those documents are attached to these reasons.  It is only necessary to discuss some of the issues, and reach final conclusions.

2. Ms Hundy is an enrolled nurse.  She has got into some difficulties.  There are two things that might affect her wish to complete her nursing studies.

3. First, there is her failure to notify Centrelink about her level of income.  She claimed a single parent benefit payment, without disclosing that she was earning some income at the same time.  She was overpaid $5,804.  She pleaded guilty in the Brisbane Magistrates Court on 13 November 2009.  She had repaid some of the money, and still owed $4,368.00.

4. She told the former Nursing Council about that conviction, as she was required to do.  The Magistrate imposed a token penalty.  The charge was proved, but he ordered that there should be “a minimal punishment”.  No conviction was recorded.  She was released on the condition that she be of good behaviour for 12 months, upon her giving security by a recognisance in the sum of $500.  The Magistrate had accepted that she was an honest person of good reputation, who committed the offence because of her “extenuating circumstances”.

5. The Statement of Agreed Facts sets out the history of her undertaking to the Board, to complete an educational program about personal actions and professional conduct.  That is, she failed for some considerable time, to complete the undertaking.  She finally did so by 1 July 2013 – a year late.

6. The joint submissions show that the Board has taken a sympathetic view of her difficulties, and delays.  That approach should be accepted – the potential suspension for three months reflects a very moderate order against her.

7. The proposed order would require her to pay the Board’s costs.  There is no information as to the likely level of those costs. 

8. It is appropriate to take into account her efforts to complete her university course at QUT.  She believed that the ethics component of her degree might be sufficient to meet the requirements of the Board.  If that is the case, it did not excuse her from the obligations in her undertaking to the Board.

9. The impact of her husband’s disability, explained in Dr Slack’s report of September 2012, must also be taken into account.  He has been considerably disabled, since a workplace accident.

10. Overall, it appears that Ms Hundy has been determined to complete her nursing qualifications, despite considerable obstacles.

11. Finally, there is the question of costs.  The Board asks for its costs.  Her solicitor observes that “… given our client’s ongoing financial problems it would serve no purpose to seek an order for costs against her, as she has no capacity to pay, and a costs order would only cause further financial hardship.”  It is appropriate to make no order about costs.

12. It is ordered that:

    1.Ms Hundy’s conduct with respect to the undertaking of 23 February 2011 amounts to “unprofessional conduct” as defined in s 5 of the Health Practitioner National Law Act 2009.

    2.Ms Hundy is reprimanded.

    3.Ms Hundy’s registration is suspended for a period of 3 months, but that suspension shall be wholly suspended for a period of 9 months during which Ms Hundy must not be the subject of any disciplinary action by the Tribunal or the Board if she is to avoid being dealt with for the suspended decision.

    4.Ms Hundy must provide a written authority to her employer, within 7 days of receiving these orders, to provide a written report to the Board about her ability to practise competently and safely (particularly having regard to issues of honesty) at intervals of 3 months from the date of these orders for a period of 9 months.

    5.No order as to costs.