Nursing and Midwifery Board of Australia v Richert - [2022] QCAT 437

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v Richert [2022] QCAT 437

PARTIES:

Nursing and midwifery board of australia

(applicant)

v

christine Richert

(respondent)

APPLICATION NO/S:

OCR336-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 November 2022 (ex tempore)

HEARING DATE:

15 November 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Mr P Glazebrook
Mr S Lewis
Dr M Sidebotham

ORDERS:

1.     Pursuant to section 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct.

2.     Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.

3.     Pursuant to section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for a period of 6 months from the date of this (15 November 2022) order.

4.     The application for a non-publication order is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – SANCTION – where the respondent nurse was convicted of one count of fraud in excess of $30,000 – where the respondent was employed as a volunteer coordinator at a charitable institution – where the respondent dishonestly obtained $86,912.40 – where the parties agree that the respondent should be reprimanded, but disagree on whether she should be disqualified from applying for registration as a health practitioner – whether the sanction should include disqualification

Health Practitioner Regulation National Law

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson, instructed by King & Wood Mallesons

Respondent:

S Robb, instructed by QNMU Law

REASONS FOR DECISION

The respondent is aged 59, having been born on the 11th of March 1966. Between 2011 and 2015, the respondent was employed as a staff member and volunteer coordinator at Gemfields Community Support Association, a charitable institution. Her role included supervision of the financial clerk, and, during this four-year period, the respondent, in cahoots with the financial clerk, dishonestly obtained $86,912.40 by permitting herself to be overpaid amounts in excess of that to which she was entitled. The respondent was not employed as a nurse at Gemfields. She was employed, however, in other facilities as an enrolled nurse and later a registered nurse.
While she initially denied the conduct in submissions to AHPRA, on the 11th of October 2020, she pleaded guilty in the District Court at Emerald to one count of fraud in excess of $30,000. She was sentenced to four years’ imprisonment, suspended after eight months for an operational period of five years. That sentence, of course, necessitated a conviction being recorded. Whatever way it is characterised, the respondent notified the board in September 2020 and formally surrendered her dual registration after the Court appearance in October 2020.
Code of Conduct
The Code of Conduct provides that nurses not participate in unlawful behaviour. The Code of Professional Conduct for Nurses in Australia relevantly provides that:
Nurses maintain and build on the community’s trust and confidence in the nursing profession.
…
The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
Further, it observes that:
The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public.
Characterisation of conduct
In the applicant’s submission, there are three serious aspects to the respondent’s misconduct:
(a)the significant level of dishonesty, coupled with a clear breach of trust;
(b)the fact that the misconduct was against a charitable community organisation;
(c)the length of time of the misconduct, rather than it being a single or isolated episode.
The applicant submits, and the respondent accepts, that the impugned conduct is properly characterised as professional misconduct. Both parties accept that the respondent should be reprimanded and as has been said in other cases, that is in itself a serious matter.
The applicant submits that, in addition to that order, the respondent should be disqualified from applying for registration as a health practitioner for 12 months from the date of the Tribunal’s order, and, of course, it is at the time of the hearing that she needs to be assessed, not at the time of the conduct. The respondent resists the imposition of a period of disqualification from reapplying for registration. In support of that submission, the respondent submits that the respondent has:
(a)a strong work history; and
(b)the respondent faced financial difficulties from her son’s injury, although it must be said that there is some doubt about whether her son’s injury affected her during the course of the whole four years; and
(c)her husband was unemployed, so that she became the sole breadwinner for the family.
As I have observed, it should be noted the conduct persisted almost certainly for longer than her son’s injury and that the unemployment of one partner is not a rare or even unusual event. Finally, the respondent submits that she has no other criminal history. Once again, that is by no means unusual in matters coming before the Tribunal. The respondent also relied on a number of references at her sentence hearing and on the fact that the conduct was not directly related to her practice of nursing. Finally, before she will be able to achieve registration, the respondent will need to convince the board that she is a fit and proper person.
The principles
The occupational regulation as it relates to health practitioners is protective rather than punitive and the sanction should be no more severe than is required to adequately meet the protective purposes of the sanction. As I said, the sanction should be judged at the time of the hearing, rather than at the time of the conduct. Here, general deterrence is clearly the most relevant consideration. The respondent has referred to comparable cases to support its submission. Those cases are set out in the respondent’s submissions and have been considered by the Tribunal. Absent in each of those cases is the considerable breach of trust to her employer, a charitable institution. Many of them, as have been pointed out in the oral submissions, relate to social security frauds.
Insight and remorse
The respondent entered a guilty plea in Court and surrendered her dual registration. The applicant submits that the passage of time since the commission of the offence does not demonstrate that the previously absent fitness has been restored. The applicant has also provided comparable cases set out in the applicant’s submission. The Tribunal has considered those cases. Each involves shorter periods of offending, lesser amounts of money, and did not involve a charitable institution. Each resulted in a period of disqualification, usually in terms of six to 12 months, or suspension of registration, or conditions being imposed on registration. The Tribunal is of the view that, in this case, the respondent’s conduct requires denunciation and general deterrence, and the Tribunal is of the view that, in addition to the other orders, the respondent should be disqualified from reapplying for registration for a period of six months from today.
Application for a non-publication order
There was another application made that the Tribunal’s processes and reasons and orders be not published and that the inspection of the file be limited to the parties on the basis that to do otherwise has the potential to interfere with the board’s capacity to investigate such matters. The applicant further submitted that is necessary in the interests of justice.
Normally, of course, the Tribunal’s processes and reasons and orders are open, and it is a definite policy that there should be transparency about such hearings. The Tribunal is not persuaded that in this case it is necessary to make the orders that are sought in that the Tribunal is not satisfied that it is necessary in the interests of justice that such orders be made.
Orders and findings
The orders and findings are as follows:
1.Pursuant to section 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct.
2.Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.
3.Pursuant to section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for a period of 6 months from the date of this (15 November 2022) order.
4.The application for a non-publication order is dismissed.