Nursing and Midwifery Board of Australia v MSR
[2025] QCAT 236
•12 June 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Nursing and Midwifery Board of Australia v MSR [2025] QCAT 236
PARTIES:
NURSING AND MIDWIFERY BOARD OF AUSTRALIA (applicant)
v
MSR (respondent)
APPLICATION NO/S:
OCR100-24
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
12 June 2025 (decision – determination of the referral)
25 September 2025 (decision – non-publication order)
25 September 2025 (reasons)
HEARING DATE:
12 June 2025
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Rinaudo AM
Assisted by:
Mr B Dixon
Ms E McKibbin
Ms M RidleyORDERS:
IT IS THE DECISION OF THE TRIBUNAL THAT:
1. In respect of ground 1, pursuant to s 196(1)(iii) of the National Law, a finding of professional misconduct under limbs (a) and/or (c) of the definition of that term in s 5 of the National Law.
2. In respect of ground 2, pursuant to s 196(1)(iii) of the National Law, a finding of professional misconduct under limbs (a) and/or (c) of the definition of that term in s 5 of the National Law.
3. Pursuant to s 196(2)(a) of the National Law, the practitioner is reprimanded.
4. Pursuant to s 196(4)(a) of the National Law, the practitioner is disqualified from re-applying for registration for a period of three years.
5. Pursuant to s 196(4)(b) of the National Law, the practitioner is prohibited from providing a health service, or using a protected title, for a period of three years.
6. There be no order as to costs.
THE TRIBUNAL ORDERS THAT:
1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a) the contents of a document or other thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal;
(c) any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of the respondent save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).
2. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a) a judicial member;
(b) a tribunal member;
(c) an associate to a judicial officer or tribunal member appointed under relevant legislation;
(d) any assessor appointed to assist the Tribunal;
(e) the staff of the Tribunal registry;
(f) any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g) the parties to these proceedings or any appeal or review arising from these proceedings.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was found to have committed elder abuse by the OPG by using her sibling’s funds for her own benefit – where the respondent pleaded guilty to a fraud charge flowing from that conduct – where the respondent was sentenced to five years imprisonment to be suspended after one year – whether the conduct constitutes professional misconduct – where the respondent submits she surrendered her registration as a form of self-punishment – whether the Tribunal accepts that submission – whether the respondent should be disqualified from applying for registration for a period of time – whether the respondent should be prohibited from providing a health service for a period of time
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNALS – where the respondent applies for a non-publication order with respect to prohibiting the publication of information that identifies or may lead to the identification of herself – where such an application is made after the final hearing – where the application is made on the basis of endangerment to the respondent’s mental health – where the applicant does not consent or oppose the non-publication order sought by the respondent – whether the Tribunal is satisfied on balance that it is necessary to make such an order
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC167
Health Ombudsman v Andelkovic [2022] QCAT 96
Health Ombudsman v OOD [2021] QCAT 388
Health Ombudsman v Niem Quoc Tang [2020] QCAT 165
Nursing and Midwifery Board of Australia v Abdulkadir(Review and Regulation) [2020] VCAT 1446
on Nursing and Midwifery Board of Australia v Alvarez (Review and Regulation) [2022] VCAT 444
Nursing and Midwifery Board of Australia v Sotingco (Review and Regulation) [2018] VCAT 1615
Nursing and Midwifery Board of Australia v Underwood (Review and Regulation) [2020] VCAT 1376Medical Board of Australia v Lodhi (Review and Regulation) [2022] VCAT 439
REASONS FOR DECISION
The respondent was first registered as a registered nurse in early January 1978 and as a midwife in late 1980.[1] The respondent was a registered nurse under the relevant provisions of the Health Practitioner Regulation National Law(Queensland) (‘National Law’) between 31 May 2011 and 10 May 2023, and as a registered midwife between 31 May 2011 and 31 May 2022. During this period the respondent was required to comply with:
(a)the Nursing and Midwifery Board of Australia’s (‘Board’) Code of Conduct for Nurses (1 March 2018);
(b)the Board’s Registered Nurse Standards for Practice (1 June 2016);
(c)the Board’s Midwife Standards for Practice (1 October 2018);
(d)the International Council of Nurses Code of Ethics for Nurses (2018); and
(e)the International Council of Nurses Code of Ethics for Nurses (2021).
[1]Statement of Agreed and Disputed Facts and Findings, filed in the Tribunal on 23 August 2024, 1 [2]-[3] (‘SOADF’).
On 30 March 2021 and 1 July 2021, the Office of the Health Ombudsman (‘OHO’) referred notifications to Ahpra regarding the respondent’s criminal history and the Office of the Public Guardian of Queensland’s (‘OPG’) finding that the respondent had committed “elder abuse” in May 2020.[2]
[2]Ibid [5].
The respondent surrendered her registration in May 2023.[3]
[3]Ibid [7].
The conduct the subject of the referral
In December 2008, the respondent was appointed as attorney for financial, personal and health matters under an enduring power of attorney (‘EPOA’) for her sibling, XY.
In July 2019, the OPG received a complaint about the conduct of the respondent. It was alleged that the respondent used the funds of XY for personal purposes and mistreated XY by limiting contact with family and friends.
After investigation by the OPG, in April 2020, the OPG gave notice to the respondent that the respondent’s authority to act for XY under the EPOA was suspended for three months.[4]
[4]Ibid 2 [10(d)].
In late May 2020, the OPG found two grounds were substantiated on the balance of probabilities. The conduct the subject of those grounds constitutes the grounds to the referral presently before the Tribunal.
In mid-June 2020, the Tribunal removed the respondent from being an attorney under the EPOA and the matter was referred to the Queensland Police Service. The respondent was charged. In mid-December 2022, the respondent pleaded guilty to the charge.[5] In mid-May 2023, the respondent was convicted and sentenced to five years imprisonment, with a suspended sentence to take effect after serving one year imprisonment.
[5]Applicant’s Written Submissions, filed in the Tribunal on 6 February 2025, [15] (‘Applicant’s Written Submissions').
In early November 2020, the respondent was charged with fraud – dishonest application of property of another contrary to section 408(1)(A)(I) of the Criminal Code Act 1899 (Qld).
Following the Board’s investigation, in early January 2024, it notified the OHO, pursuant to section 193(1)(a)(i) of the National Law, of its reasonable belief that the respondent had behaved in a way that constitutes professional misconduct and unprofessional conduct.[6]
[6]Ibid [19].
In late January 2024, the Board decided to refer this matter to the Tribunal pursuant to section 193B(2) of the National Law for hearing and determination.[7]
[7]Ibid [21].
The respondent’s position
In respect of ground one, the respondent admits that she committed elder abuse as found by the OPG in May 2020 by using funds belonging to XY for her own benefit.
The respondent agrees with the facts of this ground as set out in the Statement of Agreed and Disputed Facts and Findings (‘SOADF’)[8] but disputes that:[9]
(a)she restricted XY from having contact with family or friends;
(b)XY had impaired capacity for financial and personal/health matters; and
(c)in May 2020, the investigation report found one aspect of the elder abuse committed by the respondent involved her restricting XY from having contact with family or friends.
[8]SOADF (n 1) [10].
[9]Ibid [11].
The respondent has not expressed a view or commented on whether the conduct that is the subject of ground one as substantiated by the OPG:[10]
(a)constitutes professional misconduct or unprofessional misconduct;
(b)is inconsistent with her being a fit and proper person to hold registration; or
(c)is inconsistent with the codes and standards of practice referred to above at [1].
[10]Ibid [9], [12].
In respect of ground two, the respondent admits that she was charged with fraud – dishonest application of property of another contrary to the relevant section of the Criminal Code referred to above at [9] by misusing XY’s funds in the sum of approximately $200,000 to fund personal and business ventures.
The respondent admits the particulars regarding conviction and sentence, referred to above at [12].
Again, the respondent disputes that XY had impaired capacity for financial and personal/health matters.[11]
[11]Ibid [15].
The respondent has not expressed a view or commented on whether the criminal conduct that is the subject of ground two:
(a)constitutes professional misconduct or unprofessional conduct;
(b)was contrary to the codes and standards of practice referred to above at [1].
Legislative framework
Section 31 of the National Law establishes the Board. The Board has the function set out in section 35 of the National Law, including referral of matters concerning health practitioners to responsible tribunals in participating jurisdictions.[12]
[12]Health Practitioner Regulation National Law (Queensland) s 35(1)(i).
Section 196(1)(b) of the National Law provides that, after hearing a matter about a registered health practitioner, the Tribunal may decide that the practitioner has behaved in a way that constitutes:[13]
(a)unprofessional conduct; and/or
(b)professional misconduct.
[13]Applicant’s Written Submissions (n 5) [24].
The Tribunal has had regard to the definition of professional misconduct in section 5 of the National Law. The Tribunal has also noted the definition of ‘substantial’ as set out in Health Ombudsman v Niem Quoc Tang [2020] QCAT 165:[14]
‘substantial’ connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.
[14]Quoting the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC 167, [110].
The Tribunal was also assisted by the applicant’s submission with respect to the observations in Medical Board of Australia v Lodhi (Review and Regulation) [2022] VCAT 439, where the Tribunal observed:[15]
It is well-established that the focus is on whether the conduct itself is inconsistent with the practitioner being a fit and proper person, not whether the practitioner is in fact a fit and proper person. The surrounding circumstances and the individual circumstances of the practitioner may be relevant as mitigating factors when the Tribunal comes to consider determinations, and the Tribunal will also consider the practitioner’s current fitness to practise when deciding whether suspension or cancellation of registration may be appropriate. At the point of deciding how to characterise the conduct, however, it is the conduct itself that is the focus.
[15]Applicant’s Written Submissions (n 5) [29] citing Medical Board of Australia v Lodhi (Review and Regulation) [2022] VCAT 439 [30].
Discussion and sanction
As stated, the respondent accepts the conduct described in grounds one and two in the SOADF however, she disputes that she restricted XY’s access to others including their family. The Tribunal is satisfied that, having regard to the matters set out in each party’s written submissions and the oral submissions made at the hearing, there is evidence from family members as well as the findings of the OPG that, on the balance of probabilities, elder abuse had occurred as alleged. In the circumstances, the Tribunal is satisfied that the conduct occurred to the requisite standard.
In respect of grounds one and two, the respondent disputes that XY had impaired capacity for financial and personal/health matters. Having regard to the written submissions of the applicant and the oral submissions made by the applicant’s solicitor at the hearing, the Tribunal is satisfied that XY has impaired capacity by virtue of:
(a)the Tribunal’s findings in June 2020 on the report of Dr A dated early November 2019, which records XY as having a ‘moderate’ impairment;
(b)the Queensland Health Discharge Summary which records an intellectual impairment in the medical history;
(c)the report of Dr G dated in October 2019, which records XY as having a cognitive impairment forming part of the OPG’s capacity investigation; and
(d)the OPG’s Investigation Report dated in May 2020 that XY has impaired capacity.
The Tribunal is satisfied that the respondent’s conduct is properly characterised as professional misconduct with respect to each of grounds one and two.
The Tribunal has had regard to the sentencing remarks of the sentencing judge. In particular, the Tribunal notes the mitigating and aggravating factors referred to in those remarks. The sentencing judge, after canvassing the multiple issues in the case and having regard to the report of Dr M, Psychologist, noted as follows:[16]
Obviously, the serious nature of the offending is such that there is no reasonable alternative other than that a term of imprisonment should be imposed in relation to this matter. As I have indicated at some considerable length now, I take into account your plea of guilty, your unblemished previous character, the fact that you are not burdened in any way with a criminal history, the fact that any period of imprisonment for a mature woman without any criminal intent or background at all is a significant factor, but the need for punishment, the need for deterrence, particularly of a general nature, is such that whilst I intend to mitigate the period of imprisonment that is actually required to be served, I cannot see that a reduction below one-fifth, rather than the normal course of approximately one-third, is appropriate, even though I have taken into consideration those very significant factors.
[16]Transcript of Proceedings, R v MSR (District Court of Queensland, May 2023) 1-15 ll 33-43.
The sentencing judge also took into account the substantial restitution that had been paid at that point. The Tribunal was advised that full restitution has now been made. The sentencing judge also said:[17]
The overarching concern I have in relation to this matter and the determination of what is an appropriate penalty here, however, is the gross breach of trust that arose in circumstances where your [sibling], experiencing cognitive impairment, intellectual difficulties and disabilities, and placing absolute reliance upon you, found himself in a situation where his moneys were not being utilised for his benefit, his funds were not being kept separate from yours, they were not being enmeshed in business or other transactions – all of which was an obvious requirement in relation to your dealing with your [sibling] but became even more significantly the case when, entering into an [EPOA], you had the express obligations and responsibilities in that regard. There are no doubt a multitude of reasons why you were unable to meet those obligations, perhaps most obviously the pressures that you found yourself under in so many areas, with a business that was deteriorating rapidly, other work, and the responsibilities that you took in relation to your [sibling]. Again, as I said before, they provide some explanation, but they do not provide excuse in relation to the offending.
[17]Ibid ll 15-29.
The respondent was sentenced in May 2023 and served one year imprisonment. The suspended portion of her sentence will expire on or about May 2028.
In considering sanction, the Tribunal has had regard to consideration of general and specific deterrence, maintenance of professional standards and protection of reputation of the profession. The Tribunal notes that it is well established disciplinary proceedings are protective and not punitive in nature. The imposition of a sanction may serve a number of purposes including maintaining professional standards and public confidence in the profession. In this case, the Tribunal is particularly concerned with deterring other members of the profession that might be minded to act in a similar way and restricting the respondent’s right to practise so as to ensure that the public is protected.
The respondent has provided a significant number of references. To some extent the Tribunal is satisfied that generally the respondent’s character was otherwise exemplary.
As acknowledged by the sentencing judge, the Tribunal accepts that, but for the conduct referred to in this proceeding, the respondent has an unblemished professional career both professionally and criminally. The Tribunal notes that the applicant has submitted that the respondent has shown remorse and insight into her conduct.[18] The Tribunal accepts that the respondent is indeed extremely remorseful for her conduct, and she told the Tribunal so in her submissions.[19] This can also be seen both from her cooperation, timely plea of guilty before the District Court and that she has made full restitution to her sibling.
[18]Applicant’s Written Submissions (n 5) [59].
[19]Respondent’s Submissions in Response, filed in the Tribunal on 18 March 2025 (‘Respondent’s Written Submissions’).
On balance, the Tribunal is satisfied that the respondent has shown insight in respect of her behaviour. In that sense it does appear to the Tribunal that it is unlikely that the respondent will reoffend in the same way in the future.
The Tribunal has taken into account the comparative cases referred to by the applicant, in particular, Health Ombudsman v Andelkovic [2022] QCAT 96 (‘Andelkovic’), Nursing and Midwifery Board of Australia v Sotingco (Review and Regulation) [2018] VCAT 1615 and Nursing and Midwifery Board of Australia v Abdulkadir(Review and Regulation) [2020] VCAT 1446. Whilst the authorities do provide some assistance in respect of the range of sanctions that may be opposed, clearly, each case will turn on its own facts and those authorities are of some, but limited, assistance to the Tribunal.
The Tribunal notes that the applicant’s submission in the respect of the matters raised in the decision of Andelkovic,[20] where it says:
Mr Price has also appropriately referred the Tribunal to the decision of Health Ombudsman v OOD [2021] QCAT 388 [(‘OOD’)] in relation to the principle discussed by the Tribunal from [32] to [38].
[20]Health Ombudsman v Andelkovic [2022] QCAT 96, 13 [55].
The Tribunal has had regard to [38] of OOD, which says:
I agree with the applicant, by reference to the approach taken in similar Tribunals in other States in similar factual circumstances, that any period of disqualification from applying for registration should be co-extensive with the respondent’s remaining term of imprisonment. I agree, that it would be incongruous, and inconsistent with important principles of deterrence and maintenance of public confidence in the profession, to permit her to apply for registration while she is still on parole for serious drug offending.
The respondent made lengthy submissions to the Tribunal in which she emphasised the insight and remorse which she now had in respect of her offending and the impact of the twelve months that she spent incarcerated. She referred to her unblemished record and the numerous character references that she provided. She also noted that she had now been not practising for some two and a half years and had suffered emotionally, personally and financially as a result of her offending. She told the Tribunal that she assists with friends and acquaintances in supporting people with disabilities including a ninety-year-old former nurse. She alluded to the significant impact of her offending, having regard to other legal proceedings and how her life had changed forever over the last six years. Further, she told the Tribunal that she would, without the support and assistance of friends, effectively be homeless. Her finances are currently controlled by the Public Trustee and she is receiving Centrelink payments.
The respondent submitted that she did not agree that the sanctions sought by the Board should be imposed. She noted in her written submissions and also in her oral submissions that she does not intend to reapply for registration as a nurse. She says in her written submissions that she has ‘made the decision to not reapply for registration and [considers her] nursing days are finished.’[21]
[21]Respondent’s Written Submissions (n 25) [30(j)].
The Tribunal has had regard to the reply submissions by the applicant, particularly that the Tribunal should not place any weight on the submission that the respondent had decided not to renew her registration.[22]
[22]Submissions in Reply, filed in the Tribunal on 25 March 2025, [9] (‘Reply Submissions’).
The applicant submits that the Tribunal should note that the respondent has not provided any evidence indicating that, had her employment not been terminated, she would have still surrendered her registration.[23] The Board submits that the surrender of her registration should not be viewed as a form of ‘self-punishment’.[24]
[23]Ibid [5]-[6].
[24]Ibid [7].
Whilst the respondent relied on the decision of Nursing and Midwifery Board of Australia v Underwood (Review and Regulation) [2020] VCAT 1376 at [68], the applicant relied on Nursing and Midwifery Board of Australia v Alvarez (Review and Regulation) [2022] VCAT 444 (‘Alvarez’) to support the its submission that:[25]
a practitioner simply surrendering their registration is not a sufficient course of action and the Board may determine that a further sanction is required.
[25]Ibid [8].
The Board then referred to following observations made by the Tribunal in Alvarez:[26]
We make clear that we reject the submission to the effect that by surrendering his registration, Mr Alvarez avoided further action by the Board and so avoided costs. The Board was required by law, in the public interest, to pursue the matter as it did.
[26]Ibid citing Nursing and Midwifery Board of Australia v Alvarez (Review and Regulation) [2022] VCAT 444, 37 [140].
Whilst the Board acknowledges that Alvarez is different to the current circumstances it relies on the observations that when the conduct is very serious, simply surrendering registration is often an insufficient sanction.[27]
[27]Reply Submissions (n 28) [8].
Ultimately the Tribunal was not convinced by the submission of the respondent that no further sanction should be imposed on her. The Tribunal considers this to be a misinterpretation of the proceedings by the respondent.
Having regard to the comments above about general deterrence and having regard to the extremely serious nature of the offending which indeed required the respondent to serve twelve months actual imprisonment, the Tribunal considers that the sanction proposed by the applicant is well within range.
Accordingly, the Tribunal makes the following orders.
Orders
It is the decision of the Tribunal that:
In respect of ground 1, pursuant to section 196 (1) (ii) of the National Law, a finding of professional misconduct under limbs (a) and/or (c) of the definition of that term in section 5 of the National Law.
In respect of ground 2, pursuant to section 196 (1) (ii) of the National Law, a finding of professional misconduct under limbs (a) and/or (c) of the definition of that term in section 5 of the National Law.
Pursuant to section 196(2)(a) of the National Law, the Practitioner is reprimanded.
Pursuant to section 196(4)(a) of the National Law, the Practitioner is disqualified from re-applying for registration for a period of three years.
Pursuant to section 196(4)(b) of the National Law, the Practitioner is prohibited from providing a health service, or using a protected title, for a period of three years.
There be no order as to costs.
Application for a non-publication order
After the oral hearing of this matter, on 4 July 2025, the respondent filed in the Tribunal an application for a non-publication order prohibiting the publication of information that could identify or lead to the identification of herself. The respondent submits that such an order is justified pursuant to section 66(2)(b) and (d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The respondent’s submissions are focused on making the order pursuant to section 66(2)(b) rather than (d). She has provided a letter from her general practitioner in support of her application.
The Board filed submissions in reply to the application on 16 July 2025, taking the position that it does not consent or oppose the application.
The Tribunal has considered each party’s submissions. The Tribunal considers that further publication may have a deleterious effect on the respondent’s mental health which is supported not only by the letter from her general practitioner in support of this application, but also by the report presented to the Tribunal in relation to the previous sentencing proceedings.
On balance, the Tribunal is satisfied that such an order is necessary to avoid endangering the mental health of the respondent.
Accordingly, the Tribunal orders that:
Pursuant to s 66(1) of the QCAT Act, publication of:
(a) the contents of a document or other thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal;
(c) any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of the respondent save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the National Law.
Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a) a judicial member;
(b) a tribunal member;
(c) an associate to a judicial officer or tribunal member appointed under relevant legislation;
(d) any assessor appointed to assist the Tribunal;
(e) the staff of the Tribunal registry;
(f) any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g) the parties to these proceedings or any appeal or review arising from these proceedings.
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