Nursing and Midwifery Board of Australia v McKenzie
[2011] QCAT 338
•19 July 2011
| CITATION: | Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| V | |
| Debra Gay McKenzie (Respondent) |
| APPLICATION NUMBER: | OCR061-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham (Deputy President) (Assessors) Mr David Gill Ms Beryl Valentine Dr Susan Young |
| DELIVERED ON: | 19 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE:
Ms McKenzie’s registration is suspended for a period of six months. That sanction is suspended immediately provided that Ms McKenzie complies with the conditions in orders 2 and 3 and provided that she is not subject to any disciplinary proceedings pursuant to the Health Practitioner Regulation National Law (Queensland) for a period of two years from the date of these orders.
Ms McKenzie’s registration is subject to the following conditions for a period of 12 months commencing on the date of these orders:
2.1 Within 7 days of the date of these orders and Ms McKenzie obtaining employment (whether nursing or otherwise; and whether full-time, part-time or casual), but in any event within 2 months from the date of these orders (or such further time as the Board may allow), Ms McKenzie must nominate a psychiatrist or psychologist, for approval by the Board, to provide counselling (‘the counsellor’). If the Board does not approve the nomination, Ms McKenzie must make a further nomination within 7 days of receiving notification from the Board.
2.2 Ms McKenzie must commence counselling as soon as practicable after receiving notification of the Board’s approval of the counsellor with particular reference to the conduct that is the subject of these proceedings. Counselling must continue for 12 months or until such time as the counsellor forms the view that further counselling is unnecessary. In that event, the counsellor must provide a letter to that effect to the Board.
2.3 Ms McKenzie must provide her nursing employer with a copy of these orders and a written authorisation to permit the employer to report to the Board whenever the employer has a concern about Ms McKenzie’s trustworthiness or whenever requested by the Board. Ms McKenzie must do this within 7 days of commencing employment and must provide evidence to satisfy the Board that she has complied with this condition.
Ms McKenzie’s registration is subject to the following conditions for a period of 18 months from the date of these orders:
3.1 Within 12 months of gaining employment as a nurse, or within 18 months from the date of these orders, Ms McKenzie must complete a course of education, nominated by her and approved by the Board, in the areas of professional accountability and responsibility, and professional ethics.
3.2 Ms McKenzie must provide the Board with written evidence to its reasonable satisfaction that she has completed the approved course.
All costs and expenses in relation to the matters set out in paragraphs 2 & 3 are to be paid by Ms McKenzie including, but not limited to, the counselling and education.
Ms McKenzie must pay the Board’s costs of these proceedings fixed in the amount of $500 within 12 months from the date of these orders (or such further time as the Board may allow).
Publication of confidential information about the health or circumstances of death of members of Ms McKenzie’s family, past and present, and allegations of criminal offending by a person referred to in Ms McKenzie’s statement is prohibited without further order of the Tribunal.
The parties are directed to file a redacted version of any documents they have filed in the Tribunal that contain material affected by the non-publication order by 5 August 2011.
The original version of those documents will be placed in a sealed envelope on the file marked not to be opened without order of the Tribunal.
| CATCHWORDS : | DISCIPLINARY – Nurse – Where nurse committed criminal offence before enrolment – where served period of imprisonment – where nurse in employment – where nurse did not contest the proceedings – whether orders proposed by the parties are appropriate Criminal Code (Queensland) s1 Health Practitioners (Professional Standards) Act1999 ss 405L, 405P(1), s405P(5) Health Practitioner Regulation National Law Act 2009 National Law (Queensland) s 289 Nursing Act1992 ss 102D, 104A(g) Queensland Civil and Administrative Tribunal Act 2009 s 66 Bannister v Walton [1992] NSWCA 21 followed Prothonotary v Del Castillo [2001] NSWCA 75 followed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The conduct
Ms McKenzie, an enrolled nurse, received $46,739.93 more than she was entitled to from Centrelink under the Parenting Payment Single allowance. The overpayment occurred because Ms McKenzie failed to disclose her income as a part time nursing assistant from January 2001 until June 2007. Ms McKenzie was enrolled as a nurse in December 2007.
Throughout Centrelink’s investigation, the resulting criminal proceedings and these disciplinary proceedings, Ms McKenzie acknowledged she was aware of the overpayments but did not disclose this to Centrelink. Her only explanation was that it became harder to disclose her employment the longer it went on. Before criminal proceedings commenced, Ms McKenzie started to repay her debt. She continues to do so.
At the earliest opportunity, Ms McKenzie pleaded guilty to 1 count of defrauding the Commonwealth and 2 counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception. On 1 December 2009 she was sentenced to 2 years imprisonment but was released on her own recognizance after serving four months. She was also ordered to make reparation of the overpayment.
After her release from prison, she secured employment as an assistant in nursing and then as a medication competent assistant in nursing. Her employer considers her a valued member of staff and hopes to employ her as an endorsed enrolled nurse once these disciplinary proceedings have been finalised, and after she has served out any period of suspension.
Disciplinary finding
Conviction of an indictable offence[1] is a ground for disciplinary action against a nurse.[2] The Board’s forerunner, the Queensland Nursing Council, commenced these proceedings under the Nursing Act 1992, since repealed. The effect of transitional provisions in the amending Act is that the Tribunal must deal with the matter as if the Act was still in force. However, the National Law (Queensland), which implements the national system of registration and discipline for health professions, including nursing, will apply to the decision once made.[3]
[1]An offence that may only be brought on indictment, which is a written charge that brings the matter before some court, other than justices exercising summary jurisdiction. Criminal Code (Queensland) s 1.
[2] Nursing Act 1992 s104A(1)(g).
[3]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. Health Practitioner Regulation National Law Act 2009; National Law (Queensland) s 289.
Sanction
Ms McKenzie was not fit to practise as a nurse at the time of her convictions in December 2007. Honesty is a fundamental aspect of professional ethics. Over a lengthy period, despite specific reminders from Centrelink about her disclosure obligations, Ms McKenzie failed to disclose her income and retained payments she knew she was not entitled to receive.
It is particularly concerning that she did this while she was studying for her nursing qualifications, including undertaking training and assessment specifically dealing with professional ethics. Centrelink audits revealed her offending. She did not voluntarily disclose them.
Ms McKenzie’s offences, although not directly connected to her practice as a nurse, affected her suitability to practise at the time she qualified and at the time of conviction.[4] Nevertheless, the Tribunal must consider her fitness to practise now.[5]
[4] Bannister v Walton [1992] NSWCA 21 at [11].
[5] Prothonotary v Del Castillo [2001] NSWCA 75 at [71].
Although the parties have jointly submitted agreed orders, they are at odds about whether there is evidence of Ms McKenzie’s genuine rehabilitation. The conflict between the parties about that matter must be resolved by the Tribunal in this case, because it directly affects the orders which the Tribunal considers are appropriate.
The proposed orders involve a short period of suspension (3 months) followed by conditions that will apply for 12 to 18 months. The conditions involve further counselling and education about professional ethics.
The Board’s submissions about the offences and about Ms McKenzie’s lack of remorse and insight are strongly worded. If they are accepted, the period of suspension seems to be inadequate.
There is no contest that Ms McKenzie was labouring under a combination of quite extraordinary, unfortunate and difficult personal circumstances during the period of her offending. These relate to her children and mother, her former husband and a former partner. The Board does not necessarily accept all that Ms McKenzie says, particularly where there is no verification, but conceded that she has established some difficult circumstances. Its objection is that she seems to proffer them not just to explain but to excuse her conduct.
Although not requested, the Tribunal considers a non-publication order is justified in this case. In Ms McKenzie’s statement and the agreed bundle of documents, confidential information about the health or circumstances of death of other members of her family, past and present, are disclosed. There are also allegations of serious criminal offending by a person not represented in these proceedings. This is confidential information and, for one person, highly prejudicial accusations that do not directly bear upon the questions to be determined in these proceedings. It is in the interests of justice that information of that nature is not publicly available.
Accordingly, I direct the parties to file a redacted version of Ms McKenzie’s statement and the agreed bundle of documents to obscure confidential details of her family members’ medical conditions or circumstances of death and the allegations of criminal offending by another person. The Tribunal will place the original version of the material in a sealed envelope on the file. The redacted version will be available for inspection.[6]
[6] Queensland Civil and Administrative Tribunal Act 2009, s 66.
To the extent that they have been satisfactorily established or are not contested by the Board, The Tribunal has taken into account the matters disclosed by Ms McKenzie in her statement in the following way. They demonstrate that, during the period of her offending, she was facing considerable challenges in her personal life that make her achievement in qualifying as a nurse quite remarkable.
Despite the Board’s submission, the Tribunal does not consider Ms McKenzie’s representatives intended to argue that her circumstances justified her offending. If they had made that submission, the Tribunal would have rejected it. Her circumstances do not excuse her conduct. However, they do provide the context in which it occurred.
The Board has drawn the Tribunal’s attention to statements attributed to Ms McKenzie which, it submits, indicate a lack of insight and remorse. Largely, those statements do not come from Ms McKenzie directly but from those advocating her interests, whether they are her lawyers or her Union representatives. It is not appropriate to compartmentalise Ms McKenzie’s character as dishonest in some respects and not in others, as her lawyers seemed to ask the Tribunal to do. This does not reflect what Ms McKenzie said in her statement, at [19]:
“Although not excusing what I did, I put it forward to explain the circumstances of my offences.”
The Tribunal must assess Ms McKenzie’s conduct in its context. What it demonstrates is that Ms McKenzie did not prioritise honesty in her dealings with Centrelink over the financial demands she faced because of her difficult personal circumstances. The nature of her dishonesty is not lessened because she was honest in other aspects of her life. However, the assessment of her character as a whole is affected by her otherwise good conduct in difficult times, particularly in caring for others. Also, the dishonesty must be weighed against her many years of good conduct (Ms McKenzie aged 40 – 46 when she committed these offences).
Rehabilitation is a difficult matter to establish. Objectively there is evidence of Ms McKenzie’s rehabilitation in the following matters:
(a) Upon detection Ms McKenzie fully co-operated at all times in every stage of the investigation, prosecution and in these proceedings;
(b) She acknowledged and took responsibility for the overpayment by commencing repayment before being ordered to do so and continues to make regular payments;
(c) Ms McKenzie pleaded guilty to the criminal charges at the earliest opportunity;
(d) She has successfully served a period of 4 months imprisonment;
(e) She has secured employment since her release from prison;
(f) Apparently, Ms McKenzie is meeting the terms of her release from imprisonment and has done so for more than a year.
On the other hand, the Tribunal is troubled by Ms McKenzie’s failure to disclose to her employer that she was facing criminal charges. This occurred at a time that she says she demonstrated her remorse by co-operating with Centrelink and the police. The further dishonesty evident in her non-disclosure does not support the view that she, then, fully accepted responsibility. Yet, since serving her term of imprisonment, Ms McKenzie has managed to secure employment, no small feat, and maintained good behaviour. These are encouraging signs.
The purpose of these proceedings is not punitive. Ms McKenzie has already been significantly punished by her incarceration and remains under criminal orders. The question for this Tribunal is what sanction should be imposed to fulfil the purposes of the proceedings. This includes to what extent she requires further personal deterrence, as well as what sanction might be adequate to deter others.
In determining what is necessary to deter Ms McKenzie’s from further dishonest conduct, it is relevant to consider the criminal sanction and her apparent satisfactory performance of its terms. It is also relevant to consider other consequences that flow from her conduct.
Ms McKenzie is employed as an Assistant in Nursing, although she held enrolment as a nurse throughout. Her current employer intends to employ her as an enrolled nurse once the proceedings have concluded. Ms McKenzie’s lawyers ask the Tribunal to take into account that she has been held out of that job, which she was qualified to perform, while the proceedings were active. The Board countered that she could have worked as a nurse during that time.
It is not apparent why her employer only employed her as an Assistant in Nursing, although she was still an enrolled nurse. There is no evidence that she could have secured work as a nurse and did not take it up. It is reasonable to assume that a nurse recently released from prison and still facing disciplinary action would find it difficult to secure employment to meet her qualifications.
In December 2010, her current employer expressed the intention to employ her at level. She must have demonstrated sufficient competence, diligence and good character to secure that support. It is fair to regard the fact that she did not earn a nurse’s salary for the 7 months or so since her employer was willing to engage her in that capacity as a consequence of these disciplinary proceedings and, therefore, of her conduct. The Tribunal has considered that factor in deciding what further personal deterrence is required.
A brief suspension (3 months) followed by conditional enrolment, as the parties proposed, will not necessarily serve the purpose of disciplinary proceedings. It is more appropriate to impose a lengthier period of suspension (6 months) given the magnitude and period of the offending and Ms McKenzie’s failure to disclose the criminal proceedings to her employer. By then she was an enrolled nurse and did not fulfil the professional obligation of candour.
The Tribunal will suspend the sanction for 2 years in recognition of Ms McKenzie’s good conduct since sentence and her efforts in securing both employment and the good opinion of her employer since her release from prison. During those 2 years, the sanction will be suspended so long as Ms McKenzie complies with the agreed conditions and does not face further disciplinary action.
These orders will keep an apparently competent nurse in employment while ensuring that, over the next 2 years, she has an ongoing incentive to good conduct. The Tribunal considers this will deter others who might commit similar offences and will be a more effective personal deterrent to Ms McKenzie, at this stage of her rehabilitation, than the orders originally proposed.
6
2
0