Nursing and Midwifery Board of Australia v Von Olufsen
[2010] QCAT 593
•1 November 2010
| CITATION: | Nursing and Midwifery Board of Australia v Von Olufsen [2010] QCAT 593 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| Lucian Von Olufsen (AKA Sebastian Ross Luke Castorina) |
APPLICATION NUMBER: OCR165-10
| MATTER TYPE: | Occupational Regulation |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham Deputy President |
DELIVERED ON: 1 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. The application for an order that Mr Von Olufsen undergoes a health assessment at the Board’s cost is refused.
| CATCHWORDS : | HEALTH PRACTITIONER – Disciplinary Proceedings – Health Assessment – Whether registrant should be assessed by a health assessment panel – whether assessment would assist Tribunal – whether Board should meet the costs of the assessment. Health Legislation (Health Practitioner Regulation National Law) Act 2010 (Qld) ss 123, 289(2)(b) Nursing Act 1992 ss 114, 116(4), |
REASONS FOR DECISION
The Nursing and Midwifery Board of Australia has commenced disciplinary proceedings in the Tribunal against Mr Von Olufsen. Those proceedings are at an early stage. Mr Von Olufsen’s representatives have asked the Tribunal to order their client attend a health assessment pursuant to s114 of the Nursing Act 1992[1]. Both parties have placed evidence before the Tribunal relevant to the question whether Mr Von Olufsen suffers from a condition that impairs his ability to practice nursing.
[1] The Nursing Act 1992 was repealed by the Health Legislation (Health Practitioner Regulation National Law) Act 2010 (Qld) s 123. The repeal was effective on 1 July 2010 which is also the day the Health Practitioner Regulation National Law Act 2009 (Qld) commenced. Section 289(2)(b) provides that matters commenced under the Nursing Act continue to be dealt with under the relevant provisions of that Act as if it had not been repealed.
If the Tribunal believes, on reasonable grounds, that a person against whom a disciplinary matter has been commenced is suffering from such a condition, it may direct them to be assessed by a health assessment advisory panel. If it does so, the Board must bear the costs of the assessment, unless the Tribunal otherwise orders.
The Board opposes an order being made pursuant to s114[2] at all or, if it is, it seeks an order that Mr Von Olufsen pay for the costs of that assessment.
[2] Nursing Act 1992
The ground for taking disciplinary action alleged by the Board arises out of Mr Von Olufen’s conduct whilst he was an inpatient of the New Farm Clinic. Mr Von Olufsen is said to have used a fellow patient’s credit card to withdraw more than $5000.00 for his own use over a two week period. He was convicted on his own plea in October 2009 of stealing and fraud to the value of more than $5000.00. He spent some time in prison and is now on parole.
It appears Mr Von Olufsen has suffered from some kind of a psychological condition for a long time. In June 2008, Consultant Psychiatrist Dr Ljubisavljevic prepared a report. He considered Mr Von Olufsen (named in the report as Mr Castorina) suffers from Chronic Adjustment Disorder with depressed and anxious mood. In his view this developed in the context of work related issues and a background of ongoing legal battles and a sense of victimisation by his employer. He opined that Mr Von Olufsen suffers from a Panic Disorder without agoraphobia as evidenced by the presence of panic attacks. He did not think his psychiatric conditions, per se, gave rise to a serious potential risk to patient safety. He also considered Mr Von Olufsen’s insight and judgement would not have been inpaired by his psychiatric condition to the extent that he could not distinguish between right and wrong.
On 13 July 2010 Dr Arenas, another Consultant Psychiatrist, provided a report to Mr Von Olufsen’s lawyers. Dr Arenas considered he likely suffers from Bipolar Disorder Type 1 given that he has had specific and various numbers of distinct episodes mainly lasting for about two to three months. That diagnosis was supported by distinctly depressed episodes which last only up to two to three weeks where Mr Von Olufsen felt extremely low in mood and developed distinct suicidal thoughts.
Mr Von Olufsen’s representatives argue this material establishes there is a reasonable ground for the Tribunal to believe he suffers from a condition that impairs his ability practice nursing.
Certainly there are reasonable grounds for that belief. However, that does not mean that an order for a health assessment should be made. The issue of costs is strongly contested by the Board. The Board is strictly limited in the costs it can recover if it succeeds in establishing grounds for disciplinary action[3].
[3] Nursing Act 1992 s 116(4) The Tribunal may make an order for costs to a maximum amount equivalent to 135 penalty units ($13,500).
The Board questions the real purpose of the health assessment. It argued the purpose was to explore whether Mr Von Ofulsen had sufficient capacity to engage in the proceedings and secondly to explore whether there exist matters of mitigation or excuse as to his conduct.
There is nothing in the material that would cause the Tribunal to doubt Mr Von Olufsen’s capacity to provide his representatives with instructions in these proceedings. He was, apparently, fit to instruct his lawyer during last year’s criminal proceedings when he entered his guilty plea.
There is already evidence before the Tribunal which establishes Mr Von Olufsen was being treated for a psychological condition at the time of the offences. Further there is evidence, albeit somewhat conflicting, about what that condition was.
The purpose of a health assessment under s114[4] is not to assist a registrant to make a case in mitigation. Rather, its purpose is to assist the Tribunal to consider whether the registrant is fit to practice nursing.
[4] Nursing Act 1992.
Mr Von Olufsen has been found guilty, on his own plea, of serious offences involving dishonesty. It is most likely, that he will be precluded from practising nursing for a period. He is still serving time on parole following his release from prison in February this year. Mr Von Olufsen is no longer registered as a nurse, the Board having refused to renew his registration, partly because of concerns about his health status.
It will be important, if and when Mr Von Olufsen applies to be reregistered, to assess, then, his psychological condition and his fitness to practice as a nurse. In my view, that is the appropriate time for a health assessment to be conducted. This will assist the Board to determine whether registration should be granted and, if so, whether any conditions should be imposed.
It is common for the Tribunal to make orders that a registrant produce a recent assessment when applying for registration in matters of this type. It is also common that the registrant is required to meet the costs of that assessment. These are questions that will be considered at a later stage in these proceedings.
I do not consider a health assessment conducted now will assist the Tribunal to determine whether a disciplinary ground exists and, if so, what orders should be made. The costs of the assessment, if met by the Board, would be funded through registration fees raised from members of the profession. That is a relevant consideration when determining how the Tribunal’s discretion should be exercised.
The application for an order that Mr Von Olufsen undergoes a health assessment at the Board’s cost is refused.
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