Nursing & Midwifery Board of Australia v Oakleigh (Occupational Discipline)
[2015] ACAT 83
•12 November 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NURSING & MIDWIFERY BOARD OF AUSTRALIA v OAKLEIGH (Occupational Discipline) [2015] ACAT 83
OR 15/9
Catchwords: OCCUPATIONAL DISCIPLINE – registered nurse – professional misconduct – self notification – removing drug from workplace and self-administering without prescription
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 55
Health Practitioner Regulation National Law (ACT) ss 196
Cases cited:Health Care Complaints Commission v Litchfield (1997) NSWLR 630
Nursing and Midwifery Board of Australia Board v Rogers [2011] SAHPT 21
Tribunal: Ms M-T Daniel – Member
Date of Orders: 12 November 2015
Date of Reasons for Decision: 7 December 2015
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 15/9
RE:NURSING & MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND:DANIEL OAKLEIGH
Respondent
ORDERS
Tribunal:Ms Mary-Therese Daniel - Member
Date: 12 November 2015
The Tribunal having decided that the practitioner has behaved in a way that constitutes professional misconduct, ORDER, BY CONSENT:
The respondent is reprimanded.
The respondent’s registration is suspended until 27 June 2015.
The respondent’s registration is to be subject to the attached health and performance conditions (Annexure C) for 12 months following his resumption of clinical practice.
The Board must review the conditions within two months of the expiry of the 12 month period.
The parties have liberty to apply in relation to costs within 28 days.
signed..............................
Ms M-T Daniel - Member
REASONS FOR DECISION
This matter comes before the Tribunal as an application for orders to be made by consent pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008.
The facts of the matter were agreed by the parties and are set out at Attachment A to this decision.[1] The parties were also agreed on what orders would be appropriate in the circumstances, and put forward proposed consent orders.
[1] With redaction of unnecessary personal information
In making orders pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal must be satisfied that the orders proposed are within the Tribunal’s powers and appropriate for the Tribunal to make. This is particularly important in matters such as occupational discipline where the Tribunal performs a critical role in regulation of the profession and protection of the public.
In accordance with the usual practice, the matter was listed for short hearing for the Tribunal to consider the facts, hear submissions from the parties and review and comment upon the consent orders proposed.
The facts
Having considered the evidence filed by the parties the Tribunal is satisfied the facts set out in the statement of agreed facts at attachment A occurred.
In short terms, the practitioner over a period of roughly 3 months took an anaesthetic drug from his place of employment for his own personal use at home to assist with sleep. He was at that time suffering from chronic back pain and other conditions. The practitioner became unwell and was admitted to hospital, at this time he notified the Board of his conduct. He was suspended from practice by immediate action on 26 June 2014 and remains suspended until the finalisation of these disciplinary proceedings.
The practitioner has expressed remorse for his actions. He has taken steps to address the circumstances which led to his misconduct. He remains in employment with his previous employer, currently in a non-clinical role.
Characterisation of the conduct
Sub-section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (ACT) (National Law) empowers the Tribunal to decide that a practitioner has behaved in a way that constitutes professional misconduct. After hearing submissions of the parties, the Tribunal is satisfied that the behavior of the practitioner was professional misconduct.
Orders to be made
Sub-section 196(2) of the National Law details the Tribunal’s powers after it makes a finding under sub-section 196(1)(b). These include reprimanding the practitioner and imposing a range of conditions on the practitioner’s registration, such as, requiring the practitioner to undergo monitoring for non-prescribed drug use and supervision in the workplace. The Tribunal is satisfied that it has the power to make the orders sought by the parties.
It was submitted on behalf of the practitioner that the proposed orders are a strong response, but appropriate. The solicitor for the Board pointed the Tribunal to the principles enunciated in Health Care Complaints Commission v Litchfield (1997) NSWLR 630 and Nursing and Midwifery Board of Australia Board v Rogers [2011] SAHPT 21, specifically that protection of the public is the primary purpose of disciplinary action.
It was pointed out to the Tribunal that as a consequence of the immediate action the practitioner will have been suspended for a significant period, and that during that time steps have been taken to minimise the risk of future misconduct. The Board’s solicitor submitted that the Tribunal could be satisfied that mechanisms were now in place to support the practitioner, and the proposed conditions would manage the risk of continued access to medications for the forthcoming twelve month period. The Tribunal also considered the personal circumstances of the practitioner, these are relevant in forming a view as to what led to the misconduct, and assessing the risk to the public if the practitioner is permitted to practice in the future.
The Tribunal accepts the parties’ submissions that what is proposed is a package of orders which, taken together, will protect the public. The period of suspension has a deterrent effect specifically and generally. The proposed health and performance conditions ensure the public will be protected when the practitioner resumes practice. After hearing the parties, the Tribunal is satisfied that the consent orders are appropriate and makes those orders.
………………………………..
Ms M-T. Daniel
Member
| IN THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL |
| No. OR 15/09 |
ATTACHMENT A
| NURSING AND MIDWIFERY BOARD OF AUSTRALIA Applicant And |
| DANIEL OAKLEIGH Respondent |
AGREED STATEMENT OF FACTS
Qualification and registration details
Mr Daniel Benjamin Oakleigh (respondent) was born on 16 October 1975. He graduated from the University of Canberra in mid 2010 with a Bachelor of Nursing. The respondent obtained status as a Registered Nurse in mid 2010.
The respondent was first registered to practise nursing in Australia on 24 June 2010 (Registration number NMW 0000992318). The respondent’s registration expired on 31 May 2015. The respondent’s registration is currently suspended. No conditions, undertakings or reprimands currently attach to the respondent’s registration.
At all relevant times the respondent was employed as a Registered Nurse at the Canberra Hospital in the Anaesthetics, Peri-operative unit (AP Unit).
B. Notifications
On 18 June 2014, the respondent contacted the office of the Australian Health Practitioner Regulation Agency (AHPRA) and notified AHPRA that he had been removing the drug ‘Propofol’ from the AP Unit over the previous few months and self administering the drug at home (self notification). The respondent was admitted to hospital on 18 June 2014 due to septicaemia associated with Propofol injection.
On 18 June 2014, AHPRA received a notification from the hospital to which the respondent had been admitted, notifying AHPRA that the respondent had presented at the emergency department and had indicated he had been using un-prescribed Propofol.
On 23 June 2014, AHPRA received a notification from the respondent’s employer, who indicated the respondent had contacted his employer and informed them he had been removing Propofol from the AP Unit for the previous few months and self-administering the drug at home to assist with muscle strain, tension and secondary insomnia associated with his medical condition, Scheurmann’s disease.
On 26 June 2014, following an investigation of the respondent’s conduct, the Nursing and Midwifery Board of Australia (Board) resolved to take immediate action under s156 of the Health Practitioner Regulation National Law (ACT) (National Law), and suspended the respondent’s registration, with effect from 27 June 2014.
C. Application for occupational discipline
On 20 April 2015 the Board filed an application for occupational discipline in the ACT Civil and Administrative Tribunal (Tribunal).
On 12 May 2015, at the direction of the Tribunal, the Board filed an amended application for occupational discipline in the Tribunal, being the application currently before the Tribunal.
The Board’s application alleges the following, in summary:
(a)The respondent repeatedly removed Propofol from his workplace and self-administered the drug without a prescription.
(b)The respondent’s conduct posed a serious risk to public health and safety.
(c)The respondent’s conduct fails to meet the standard of practice articulated in the following relevant codes of conduct:
i.Clauses 1.1; 2.1; 4.5; and 6.1, Code of Ethics, Nursing and Midwifery Board of Australia (Annexure A).
ii.Clauses 1.5; 3.1; 9.1; 9.2; and 10.6, Code of Professional Conduct, Nursing and Midwifery Board of Australia (Annexure B).
(d)The respondent has acted in a way that constitutes:
i.Professional misconduct; or
ii.In the alternative, unprofessional conduct; or
iii.In the further alternative, unsatisfactory professional performance
within the meaning of s 5 of the National Law.
Section 5 of the National Law defines ‘professional misconduct’ as including:
(e)Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(f)More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(g)Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Section 5 of the National Law relevantly defines ‘unprofessional conduct’ as:
...professional conduct that is of a lesser standard that that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers...
Section 5 of the National Law relevantly defines ‘unsatisfactory professional performance’ as meaning:
...the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health practitioner in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
D. Agreed facts
The respondent admits, and the Board accepts, the following facts.
Between approximately March 2014 and June 2014, the respondent removed quantities of the anaesthetic drug Propofol from his place of employment.
The respondent self-administered Propofol at his home, via a cannula.
During the relevant period, the respondent used Propofol up to two or three times per week; he used the drug overnight to relax his back muscles and to assist with sleep. On each occasion he used the drug, the respondent used up to four or five vials of Propofol.
At all relevant times, the respondent’s employer was unaware of his actions.
At all relevant times, the respondent did not have a prescription for Propofol and was not otherwise authorised to remove Propofol from his workplace or self-administer Propofol.
The respondent denies using Propofol at work or while he had the sole care of his children. The respondent denies using Propofol in the twelve hours preceding work.
The respondent accepts that his conduct was ‘professional misconduct’ within the meaning of the National Law.
The respondent indicates that his conduct was prompted by the chronic pain he experienced from severe kyphosis resulting from Scheuermann’s disease and by his pre-existing depression and anxiety.
The respondent expresses remorse for his conduct and indicates that he will never take any medication from the workplace or use unprescribed drugs again.
The respondent advises that since his registration was suspended he has taken steps to address his conduct, by meeting with his GP to review his medication for pain, sleep disturbance, depression and anxiety.
The respondent’s current health conditions (Scheuermann’s Disease, depression, anxiety) are being treated by Dr Brian Hsu, orthopaedic surgeon, Dr Taiye Oguns, general practitioner and Mr Greg Yee, clinical psychologist
On 12 March 2015 the respondent underwent surgery (involving implantation of two titanium rods on either side of his spine) to address the severe kyphosis arising from Scheurmann’s disease. The surgery resulted in a successful outcome with a prognosis of decreased pain and improved function. The respondent takes an antidepressant prescribed for depression/anxiety.
The respondent has continued to work for his previous employer, in a non-clinical capacity, since his registration was suspended on 27 June 2014.
E. Agreed conditions
For the purposes of s 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the parties consent to, and respectfully request that the Tribunal order under s 196 of the National Law, the registration conditions set out at Annexure C to this statement.
In addition, the parties consent to, and respectfully request that the Tribunal make, the following orders:
(a)The respondent’s registration is suspended until 27 June 2015.
(b)The respondent is reprimanded for his conduct.
Dated: 29 September 2015
.......................................... ..............................................
Nadiah Tarbet David Lander
ACT Government Solicitor Lander & Co
Solicitor for the applicant Solicitor for the respondent
ANNEXURE A
Annexure B
ANNEXURE C
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