Nursing and Midwifery Board of Australia v Pearce
[2024] QCAT 534
•15 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Nursing and Midwifery Board of Australia v Pearce [2024] QCAT 534
PARTIES:
NURSING AND MIDWIFERY BOARD OF AUSTRALIA (applicant)
v
RACHAEL PEARCE (respondent)
APPLICATION NO/S:
OCR304-23
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
15 November 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Rinaudo AM
Assisted by:
Ms E McKibbin, Nursing Panel Member
Ms B L Soong, Midwifery Panel Member
Mr M Halliday, Public Panel MemberORDERS:
1. Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
3. Pursuant to section 196(4)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is disqualified from applying for registration for a period of 12 months from the date of this order.
4. No order as to costs.
CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent attended her workplace while intoxicated — where the respondent slept while she was rostered to provide one-on-one patient care — where the respondent was convicted of driving under the influence of alcohol — where the conduct amounts to professional misconduct — what is the appropriate sanction — reprimand — where the respondent is disqualified from applying for registration for a period of 12 months
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Transport Operations (Road Use Management) Act 1995
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The respondent in this case was first registered as a nurse with the Queensland Nursing Council on 1 December 1999. A referral has been made by the applicant Board pursuant to the Health Practitioner Regulation National Law (Queensland) (‘National Law’) in relation to issues that arose in October and November 2019, and November 2020. The referral was filed on 8 December 2023.
The allegations of misconduct levelled at the respondent are set out in some detail in the written submissions of the applicant. In short, the allegations are that between 15 October 2019 and 7 April 2021, the practitioner:
(a)attended her place of work while under the influence of alcohol;
(b)slept while rostered to provide one-on-one care to patient; and
(c)was convicted of driving under the influence of alcohol.
In a statement of agreed facts, the respondent has accepted that conduct. On 27 April 2023, the Board revoked a former decision to suspend the practitioner’s registration and it then imposed conditions on the practitioner’s registration. Following the Board’s decision on 27 April 2023, the practitioner failed to renew her registration and remains unregistered.
At material times, the respondent was employed by the Central Queensland Hospital and Health Service (‘CQHHS’). Her employment with the CQHHS was suspended on 29 November 2019 and ceased on 19 November 2022.
In short compass, the respondent admits that, on 15 and 16 October 2019:
(a)she was rostered to work between 10:45pm and 7:15am in the Emergency Department;
(b)she arrived to work at 11:05pm;
(c)she was responsible for undertaking one-on-one monitoring of a patient in resus room three;
(d)resus room three is an acute resuscitation cubicle usually assigned to the most unwell patient;
(e)the patient she was monitoring was a cardiology category patient;
(f)that between 2:30am and 3:30am, she was observed by a colleague with whom she was speaking to have breath that smelled like alcohol;
(g)at 4:30am, she recorded the last observations for the patient she was responsible for and fell asleep after doing so;
(h)she was discovered sleeping by a colleague by approximately 5:00am;
(i)she was woken up at approximately 5:40am;
(j)upon waking, she was observed by a colleague to be disorientated and confused;
(k)at approximately 6:30am, she was observed by a colleague with whom she was speaking to have breath that smelled like alcohol.
The respondent admits that on 28 and 29 November 2019:
(a)she was rostered to work between 10:45pm and 7:15am in the Emergency Department;
(b)she was responsible for undertaking one-on-one monitoring of a patient in resus room one;
(c)she was discovered sleeping by a colleague at approximately 6:00am;
(d)she was woken up by a colleague at an unknown time shortly after 6:00am;
(e)upon waking, she was observed by a colleague to have pupils of at least size five;
(f)she was observed by a colleague to have breath which smelt fruity or of alcohol;
(g)she was unsteady on her feet; and
(h)she was observed by colleagues to be very disorientated and incoherent.
The respondent also agrees that on 7 April 2021, before the Magistrates Court in Rockhampton, she pleaded guilty to and was found guilty of one count of driving under the influence in breach of s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld). The respondent also admitted to driving whilst under the influence and had a blood-alcohol reading of 0.405% BAC.
Discussion and sanction
In referrals to the Tribunal of this type, the Tribunal may characterise the impugned conduct as unsatisfactory professional performance, unprofessional conduct and/or professional misconduct. It is noted that in the written submissions, consideration is given to the characterisation of the offending of this type. The Tribunal accepts that, having regard to the submissions made by the applicant and noting the agreed facts by the respondent, the conduct amounts to professional misconduct.
It is noted that the onus of proof is on the applicant, and that the standard of proof is reasonable satisfaction having regard to the requirements identified in Briginshaw v Briginshaw.[1] It is noted that the main guiding principle of these types of referrals is that protection of the public and public confidence in the safety of services provided by registered health practitioners are paramount.[2] The underlying principle is one of protection and not punitive considerations.
[1][1938] HCA 34; 60 CLR 336, 362.
[2]Health Practitioner Regulation National Law (Queensland) (‘National Law’) s 3A(1)(a)-(b).
In its submissions, the applicant sets out a summary of principles that have been applied by the Tribunal in regard to the purposes that may be served by imposing disciplinary action.[3] The Tribunal notes and accepts that summary.
[3]Hearing Book filed on 29 August 2024, 307 [54].
A number of comparatives have been provided for the Tribunal’s consideration in determining what sanctions should be imposed and the Tribunal has taken note of those comparatives; noting that each comparative must be considered having regard to its own individual facts.
As has been indicated, the Tribunal has considered the matters relevant to the respondent in this case, in particular:
(a)at the time of the conduct, the respondent was a senior practitioner with over 20 years as registered nurse;
(b)the conduct contravened the applicant’s Code of Conduct and Code of Ethics;
(c)the respondent’s performance and conduct is objectively serious conduct, and contravenes both accepted standards of practice and the law; and
(d)the category of patients for which the respondent was responsible on each occasion, whilst she was under the influence of alcohol, were highly vulnerable patients in resuscitation cubicles including a cardiology patient. It is noted by the applicant that no patient ultimately suffered any harm.
The respondent’s medical records confirm she acknowledges suffering from, and inconsistently seeking and participating in treatment for, alcohol dependence. In that regard, the Tribunal notes the report from the general practitioner, Dr Michael Keating, dated 3 June 2024. In his report, Dr Keating states that the respondent:[4]
has completed a number of rehabilitation episodes and, whilst her family life is now settled and reports her general health good, she is still drinking one to one and a half bottles of wine a day. She is also presently undergoing a smoking cessation programme. Examination was within normal limits.
[4]Ibid 299.
The respondent now works for her husband as a labourer in his demolition business but does not drive. She has not attended to her last pathology request for routine bloods to ascertain liver function. She does not visit a practice on a regular basis. Dr Keating reports that the respondent:[5]
has no wish to regain her nursing registration with Ahpra or the Board and has no wish to re-enter her previous profession of nursing.
[5]Ibid.
The Tribunal notes that a number of referees have spoken of the respondent in favourable terms and it is clear that, particularly having regard to her previous 20 years’ experience as a registered nurse, the respondent is a person of good character other than her continuing use of alcohol in amounts which would be unacceptable and anathema to her continuing as a nurse.
This does show a lack of insight and remorse on her part, which is not in her favour when it comes to the consideration of the sanction. Deterrence, both general and personal, is an important issue which the Tribunal has taken into account in this case in settling on the sanction. Obviously general deterrence is extremely important in this case but having regard to the continuation of her drinking patterns, personal deterrence is also a relevant consideration.
It is noted that she pleaded guilty in respect of the drink driving offence, was ultimately fined $1,500 and disqualified from holding or obtaining a driver’s license for 18 months.
It is noted that the applicant submitted that the Tribunal should take into account the following relevant considerations:[6]
(a)that the respondent made early admissions regarding the factual allegations;
(b)she accepts her admitted conduct may be characterised as professional misconduct;
(c)has not worked as a registered nurse since 29 November 2019;
(d)is currently working as a labourer for her husband;
(e)has not sort to renew her registration in the period after the applicant revoked the suspension and imposed conditions; and
(f)continues to depend upon alcohol, consuming one to one and a half bottles of wine daily.
[6]Ibid 317-318.
It is noted that the applicant submits that the period of time between the admitted conduct occurring and being referred to the Tribunal is a relevant factor for consideration by the Tribunal.
The Tribunal is satisfied in this case that the proper characterisation of the conduct is professional misconduct and is satisfied that the sanction proposed by the applicant is appropriate in the circumstances and is not punitive to the respondent having regard to the principles set out above. In those circumstances, the Tribunal imposes the following sanction.
Order
Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
Pursuant to section 196(4)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is disqualified from applying for registration for a period of 12 months from the date of this order.
No order as to costs.
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