Nursing & Midwifery Board of Australia v Feeney

[2012] QCAT 330

CITATION: Nursing & Midwifery Board of Australia v Feeney [2012] QCAT 330

PARTIES:	Nursing & Midwifery Board of Australia (Applicant)
v
Bruce Iain Feeney (Respondent)

APPLICATION NUMBER:             OCR143-10

MATTER TYPE: Occupational regulation matters

HEARING DATE:   23 July 2012

HEARD AT:    Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by
Ms Mary Barnett
Mr Bevan Hughes
Ms Barbara Soong

DELIVERED ON:   25 July 2012

DELIVERED AT:   Brisbane

ORDERS MADE:     

1.     Mr Feeney is reprimanded.

2.     Mr Feeney is prohibited from applying for registration before 30 April 2013 and until he has complied with the following requirements:

a.    For at least 12 months immediately preceding applying for registration, Mr Feeney must:

i.   Undergo treatment for both his alcohol use and depression with a psychiatrist specialising in addiction medicine, nominated by Mr Feeney and approved in writing by the Board.  Mr Feeney must provide the psychiatrist with a copy of these orders and the Tribunal’s reasons.  The treatment must be at the frequency and for the duration as determined by the psychiatrist.  Mr Feeney must comply with the psychiatrist’s treatment directions, including about taking medications.

ii.    Undergo monthly haematological testing (Carbohydrate Deficient Transferrin (‘CDT’), Liver Function (‘LF’), Mean Corpuscular Volume (‘MCV’) and Full Blood Count to demonstrate total abstinence from alcohol consumption.

iii.   Undergo counselling with a clinical psychologist nominated by Mr Feeney and approved in writing by the Board.  The purpose of the counselling is to facilitate Mr Feeney developing insight into both his alcohol use and depression and why he engaged in the behaviour which is the subject of these proceedings, and to develop management strategies in respect of both his alcohol use and depression.  The counselling must be at the frequency and for the duration as determined by the counsellor.

b.    Mr Feeney must provide the Board with a report from each of the psychiatrist and the counsellor advising that Mr Feeney has complied with the treatment requirements and is fit to return to practice.

c.    Mr Feeney must complete a course or courses of education addressing professional ethics and the relationship between personal misconduct and fitness to practice, such course or courses to be nominated by Mr Feeney and approved in writing by the Board.  The course or courses must be of at least a tertiary level.  Mr Feeney must provide a report from the provider of the course or courses to the Board confirming the successful completion of the course or courses.

d.    The Board must impose the conditions set out in the schedule to these orders on any future registration of Mr Feeney for the first 12 months of Mr Feeney’s active employment as a nurse.

e.    Mr Feeney may not apply to review the conditions until 2 years after the date of these orders.

3.     Mr Feeney must bear all costs and expenses of compliance with the requirements before registration and the conditions that must be imposed on his registration.

4.     Mr Feeney must pay the Board’s costs of and incidental to these proceedings as assessed on the standard basis on the District Court scale by QICS within 30 days of the Tribunal fixing those costs (or such further time as the Board may allow).

CATCHWORDS: 

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSE – DISCIPLINARY PROCEEDINGS – Where the nurse committed serious criminal offences while heavily abusing alcohol – where offences not directly connected to his practice as a nurse – where the offences demonstrate he was unfit to practise – where his alcohol abuse renders him unfit to practise – where his registration has lapsed – where the parties agreed on the preclusion period and preconditions to registration and the conditions that must apply once he is registered

Nursing Act 1992, ss 102D, 104A(1)(g), 104A(3)
Queensland Civil and Administrative Tribunal Act 2009, s 32

Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 579
Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264
Nursing Council v Dodd [2010] QDC 220
Nursing and Midwifery Board v Feeney [2011] QCAT 261
Nursing and Midwifery Board of Australia v FH [2010] QCAT 675
Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423
Medical Radiation Technologists Board of Queensland v Hennig [2010] QCAT 609

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Feeney, a nurse, faces disciplinary action because he committed serious criminal offences, for which he served a period of imprisonment.  Although not directly connected with his practise as a nurse, the convictions establish a ground to take disciplinary action.[1]  They occurred in circumstances that demonstrate that Mr Feeney was then, and remains, unfit to practise as a nurse.

   [1]        Nursing Act 1992, s 104A(1)(g).

2. The Tribunal previously rejected a joint submission made by the parties because Mr Feeney was unrepresented.  It was not satisfied he had obtained advice about the consequences of his agreement to a lengthy period during which he would be precluded from nursing.  The reasons for that decision were published.[2]

   [2]        Nursing and Midwifery Board v Feeney [2011] QCAT 261.

3. Since then, Mr Feeney has been provided with access to legal advice about his options, through the agency of QPILCH[3] and Ms Feeney of counsel (no relation), who provided her services pro bono.  The Tribunal notes with appreciation the valuable contribution made by both Ms Feeney and QPILCH in these proceedings.

   [3]        The Queensland Public Interest Law Clearing House.

4. The parties have now made a further joint submission about the findings they say the Tribunal should make and the sanction that might flow from those findings.  The Tribunal accepts there are grounds to take disciplinary action and that the orders proposed by the parties are appropriate to achieve the purposes of disciplinary proceedings.

The conduct

1. Mr Feeney was convicted of two counts of armed robbery.  The offences were committed in October and December 2008.  In both cases, Mr Feeney extracted relatively small sums of money by threatening sales assistants in small businesses with a blood filled syringe, while making demands for money and cigarettes. 

2. Shortly after the first offence, Mr Feeney surrendered himself to police.  After he was arrested, he was released on bail.  He committed the second offence while on bail for the first one.  The police interviewed him shortly afterwards and he made admissions during the interview.

3. In June 2009, Mr Feeney pleaded guilty to two counts of armed robbery.  He served 6 months of a 4 year term of imprisonment and remains subject to that partially suspended sentence until June 2013.

The findings

1. Conviction of a criminal offence punishable by imprisonment constitutes a ground to take disciplinary action.[4]  The purpose of disciplinary proceedings is not to punish the practitioner; that is the role of the criminal sentence.  However, maintenance of public confidence in the profession and professional standards disciplinary action being taken.

   [4]        Nursing Act 1992, s 104A(1)(g).

2. The Board submitted the Tribunal would be satisfied that the conduct was:

   (a)   professional conduct of a lesser standard than might reasonably be expected of him by the public or his professional peers;

   (b)   infamous conduct in a professional respect; and

   (c)   misconduct in a professional respect.[5]

[10]Mr Feeney is not currently registered.  The Queensland Nursing Council, the predecessor to the Board, suspended his registration on 9 January 2009.  The registration lapsed on 30 June 2009, when Mr Feeney did not apply to renew it.  Nevertheless, the conduct occurred while Mr Feeney was a nurse and the Tribunal has jurisdiction to deal with the conduct as if he were still registered.[6]

[11]Mr Feeney did not cavil with the findings the Board asked the Tribunal to make and the Tribunal accepts they are open on the evidence before it.  There could be little argument that Mr Feeney’s conduct falls below the standard expected of a nurse by his peers and the public.  It need not occur in the course of a nurse’s practice in order to be infamous conduct or misconduct in a professional respect, if it draws into question the practitioner’s suitability to be registered. 

[12]The conduct is fairly described as infamous, because it is dishonourable or disgraceful, involving the additional element of notoriousness or shamefulness.[7]  It is misconduct in a professional respect because it manifests qualities incompatible with the conduct of his profession.[8]

[5]        Nursing Act 1992, s 104A(3).

[6]        Nursing Act 1992, s 102D.

[7]        Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423 at [22]-[23].

[8]Medical Radiation Technologists Board of Queensland v Hennig [2010] QCAT 609 at [6]-[8].

Sanction

[13]Mr Feeney’s offences were most serious.  Neither was spontaneous, involving some planning.  Both had the potential to cause alarm in the victims who had good cause to fear the blood might be contaminated and their health might be compromised if Mr Feeney carried out his threats.  The conduct calls for a significant sanction.

[14]Mr Feeney has already suffered the stigma of his registration being suspended and the Tribunal will now reprimand him, an order which is publicly recorded. 

[15]The parties have proposed a preclusion period that will expire on 30 April 2013, a little less than 4 years and 4 months after his registration was suspended by the Board.  Although he will then still be under the suspended sentence, he will have all but completed it and have demonstrated strong prospects of complete rehabilitation.  There can then be a high level of confidence that his suspended term will not be activated. 

[16]Mr Feeney explained his agreement to the more punitive sanctions initially proposed by the Board was due to his shame about his conduct.  The Tribunal believes Mr Feeney’s remorse is genuine.  A longer preclusion period is not supported by the sanctions imposed on other practitioners who have committed serious criminal offences.[9]

[9]Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 579; Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264; Nursing Council v Dodd [2010] QDC 220; Nursing and Midwifery Board of Australia v FH [2010] QCAT 675.

[17]The preclusion period leaves open the possibility that Mr Feeney will be able to secure registration without having to undergo further retraining.[10]  That is only fair given Mr Feeney has a long history of good service as a nurse, without complaint or any suggestion he is not competent.

[10]This requires the equivalent of 3 months full time work over the preceding 5 years, or completion of a Board approved program of assessment, or supervised practise: Recency of Practice Registration Standard, Nursing and Midwifery Board of Australia, 1 July 2010.

[18]The Tribunal also notes that when Mr Feeney’s personal circumstances deteriorated, before he committed these offences, he changed his working arrangements.  This suggests he had some insight that he posed a risk in the workplace; a positive sign for Mr Feeney’s successful return to nursing.

[19]Mr Feeney overcame substantial barriers to achieve his professional status.  As a young teenager, he began to abuse alcohol.  His father took his own life and he was emotionally estranged from his mother.  He did not complete secondary school.  Viewed at that time, as a young indigenous man without secondary schooling and a substance abuse problem, his prospects were very limited.

[20]His mother introduced him to a Christian community which supported Mr Feeney in his determination to abstain from alcohol.  He did so for many years.  He met his future wife through this community.  They married and raised two children.  When he was still quite a young man, Mr Feeney completed a tertiary level nursing degree in the required time, despite the lack of senior schooling, a notable achievement in itself.

[21]At the time of these offences, Mr Feeney was labouring under personal stresses and had relapsed into alcohol abuse.  He says he lost his faith, started to drink, at first socially and then more frequently.  His marriage broke down and for a period he was estranged from his daughters.

[22]During the period of these offences, they occurred about 7 weeks apart, he says he was depressed and was using alcohol heavily.  He was desperate.  He tried a number of strategies to control his drinking, without success.  He says he committed the offences because he saw prison as a reasonable option for drying out, an indication of how impaired his judgment then was.

[23]Mr Feeney has support from family members, particularly his sister who has imposed sobriety as a condition of his living with her.  Since being released from prison, Mr Feeney has worked as an Assistant in Nursing and, more recently, as a traffic controller.  In that role, he has completed a course that enables him to work as a supervisor.  His employer’s trust in him is also demonstrated by the fact that he has custody of a work vehicle.

[24]In his affidavit, Mr Feeney revealed his struggle with alcohol is ongoing, and he conceded he is not fit, currently, to return to practice.  His candour reflects well on his character.  It also gives the Tribunal confidence that, properly treated, Mr Feeney will manage to get his substance abuse back under control, as he had done for 19 years; most of his adult life. 

[25]The parties have proposed preconditions to Mr Feeney’s eligibility for registration that involve abstinence from alcohol, treatment for substance abuse and depression and a tertiary level course in ethics.  Mr Feeney has already started some treatment.  He has consulted a counsellor on a number of occasions and attends Alcoholics Anonymous meetings on a frequent basis.

[26]Once he is registered again, he will be subject to conditions intended to support and monitor him in the workplace.  They require ongoing abstinence, treatment and supervision for 12 months.  Although the requirements are extensive, they are well directed to the problem that led to his offences.  They will apply for the first 12 months of Mr Feeney’s active practise as a nurse.  He may not apply to review them for 12 months from the date of these orders.

[27]There are many indications in Mr Feeney’s past that he will be able to resume his practise as a nurse and play a valued role in our health system.  He overcame personal circumstances that would have thwarted many others.  Although his offences were very serious, they appear to be out of character.  Mr Feeney has almost completed his criminal sentence, should look to the future and put those desperate times behind him.

SCHEDULE

The Board must impose the following conditions on Mr Feeney’s registration for the first 12 months of his active practise as a nurse:

1. Mr Feeney must remain totally abstinent from alcohol.

1. Mr Feeney must continue treatment with the psychiatrist at the frequency and for the duration as determined by the psychiatrist.  Mr Feeney must be fully compliant with this treatment, including all directions and taking any medications prescribed by the psychiatrist.  Mr Feeney must authorise, in writing, the psychiatrist to report to the Board as to Mr Feeney’s ability to safely practice:

   2.1     if the psychiatrist has any concern about Mr Feeney’s ability to safely practise;

   2.2     as requested by the Board; and

   2.3     in any event, at 3 monthly intervals.

1. Mr Feeney must continue counselling with the counsellor at the frequency and for the duration as determined by the counsellor.  Mr Feeney must authorise, in writing, the counsellor to report to the Board as to Mr Feeney’s ability to safely practise:

   3.1     if the counsellor has any concern about Mr Feeney’s ability to safely practise;

   3.2     as requested by the Board; and

   3.3     in any event, at 3 monthly intervals.

1. Mr Feeney must undergo alcohol breath testing in accordance with the Board’s protocol.

1. Mr Feeney must undergo haematological testing (CDT, LF and MCV) in accordance with the Board’s protocol.  Mr Feeney must attend for testing within 7 days of this condition becoming effective, unless otherwise directed by the Board.

1. Mr Feeney is prohibited from practising as a nurse through a nursing agency.

1. Mr Feeney must, within 2 business days of gaining employment as a nurse, notify the Board in writing of:

   7.1     the name and address of the employer;

   7.2     the address of his place of employment as a nurse;

   7.3     the position description at the place of employment.

1. Mr Feeney must notify the Board within 2 business days of a change in any of the details required pursuant to paragraph 3(g).

1. Within 7 days of commencing employment, Mr Feeney must provide to his employer a copy of the Tribunal’s orders and reasons in this matter, Part C of the application and a written authority to authorise his employer to report to the Board about Mr Feeney’s ability to safely and completely practice nursing on the following occasions:

   9.1     at intervals of 3 months from the commencement of her employment;

   9.2     if the employer holds any concern about Mr Feeney’s ability to safely and competently practise; and

   9.3     if requested by the Board.

1. Mr Feeney can only provide nursing care under the supervision of a registered nurse, such nurse to be senior to Mr Feeney in terms of both years of experience and position, and to be approved by Mr Feeney’s employer (‘the supervisor’).  The supervisor need not directly supervise Mr Feeney provided the supervisor is present at the same facility and is reasonably available to Mr Feeney.

1. Mr Feeney must notify the psychiatrist, the counsellor and the Board immediately upon becoming aware of any material change in his health.

1. Mr Feeney must authorise the Board, in writing, to advise the employer if notified by the psychiatrist (pursuant to condition (b)), the counsellor (pursuant to condition (c)) or Mr Feeney (pursuant to condition (k)) of any concerns in respect of Mr Feeney’s ability to safely practise.

1. Mr Feeney must bear the costs of complying with these conditions.