Nursing & Midwifery Board of Australia v SB
[2012] QCAT 332
| CITATION: | Nursing & Midwifery Board of Australia v SB [2012] QCAT 332 |
| PARTIES: | Nursing & Midwifery Board of Australia (Applicant) |
| v | |
| SB (Respondent) |
| APPLICATION NUMBER: | OCR045-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Mr Alan Barnard Mr David McKenzie Ms Mary Sidebotham |
| DELIVERED ON: | 20 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. SB is reprimanded. 2. SB is prohibited from re-applying for registration until a period of 12 months from the date of these orders has elapsed; and she has complied with the following conditions: 2.1 SB has undergone psychotherapy treatment with one treating psychiatrist nominated by SB and approved in writing by the Board for at least 12 months. SB must comply with all directions given by the psychiatrist (which may include random drug screening at the discretion of the psychiatrist). The treatment must continue at a frequency determined by the psychiatrist until the psychiatrist considers that SB is safe to practice. Prior to undergoing SB commencing any treatment with the psychiatrist, the Board must provide the psychiatrist with a copy of the documents set out in Schedule A to these orders; 2.2 SB has provided the Board with a report of the psychiatrist detailing the treatment provided and certifying that SB is able to safely practise nursing; 2.3 After the Board receives the report referred to in paragraph 2(c), SB has undergone a health assessment pursuant to Part 8 Division 9 Health Practitioner Regulation National Law Act 2009 which confirms that she is safe to return to nursing; 2.4 SB has completed 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 SB and approved in writing by the Board; and 2.5 SB has provided to the Board a report from the provider of the course or courses referred to in order 2(d) confirming that she has successfully completed them. 3. The Board must impose the conditions set out in Schedule B of these orders upon any future registration of SB, for a period of 18 months (such period to run only whilst SB holds active employment as a nurse). 4. All costs and expenses in relation to the matters set out in paragraphs 2 and 3 are to be paid by SB. 5. SB shall pay the Board’s costs fixed at the sum of $13,500.00. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSING – DISCIPLINARY PROCEEDING – where the registrant failed to comply with previous conditions on her registration – where the registrant falsified documents to gain employment in contravention of the conditions – where the registrant misrepresented the basis of her limited registration to employers – where the registrant is no longer registered – where the parties are in agreement on sanction – whether the conduct constitutes professional misconduct – whether the proposed sanction is appropriate in circumstances where the registrant has failed previously to comply with conditions OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSING – IMPAIRMENT – where the registrant suffers from a Mixed Personality Disorder – where the registrant suffered from a Factitious Disorder at the time of the subject conduct – where previous psychological diagnoses were based on false information provided by the registrant – whether the registrant is impaired OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSING – COSTS – where the registrant agrees to pay the Board’s costs of the proceeding – whether it is appropriate to order the registrant to pay the Board’s costs Nursing Act1992, ss 102D, 104A(3), 104A(3)(d), 104A(3)(e) Queensland Civil and Administrative Tribunal Act 2009, s 32 Nursing and Midwifery Board of Australia v CD [2011] QCAT 728 Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Barnes of Rodgers, Barnes & Green, Lawyers, appeared for the Board |
| RESPONDENT: | Ms Simpson of Roberts & Kane, Solicitors, appeared for SB |
REASONS FOR DECISION
SB faces disciplinary proceedings because she failed to comply with restrictions imposed on her registration in September 2007, following concerns about her fitness to practise as a nurse.
SB made false representations to potential employers about the circumstances of her registration. She also falsified documents purporting to be official documents of the Queensland Nursing Council, the predecessor to the Board, and the Queensland Police Service.
SB did not contest the Board’s allegations (except for one allegation which the Board withdrew). The parties made a joint submission on sanction. The Tribunal convened a hearing on the papers,[1] but declined to finalise the matter without a further health assessment of SB.
[1] Queensland Civil and Administrative Tribunal Act 2009, s 32.
The Tribunal convened an oral hearing on 11 July 2012 and heard evidence from Dr Leong, who conducted the health assessment requested by the Tribunal. At the end of the hearing, the Tribunal announced its orders, with reasons to follow. These are the reasons.
The conduct
SB came to the Board’s attention in 2007 because of her behaviour towards other staff at the public hospital in which she worked. In January 2007, she was accused of sending unsolicited text messages and poems with emotionally disturbing and dark themes. She was counselled against this, but continued to do so. Her employer directed her to undergo a psychiatric assessment, which advised she was fit to practise.
There were further reports about her conduct to colleagues in February and June 2007, the latter involving a new staff member who reported SB appeared to be stalking her. She was warned by Police and the Board suspended her registration pending an independent medical assessment.
Dr Leong conducted that assessment. In his first report (July 2007) he said there was evidence of some impairment in reality testing and judgment and an underlying probable diagnosis of a severe personality disorder or severe personality dysfunction, which presented a potentially serious risk to her health or safety in the workplace.
Another psychiatrist, Dr Kathryn Galvin, started to treat SB after her registration was suspended. She provided a report in late August 2007 which assessed SB as fit to return to practise, preferably not on night duty, and recommended further treatment.
The Board ended the suspension and granted limited registration subject to conditions. These prevented SB from working night shifts and required her to practise under the supervision of a registered nurse. She had to keep the Board informed of her employment and supervision details and to authorise her employer to report to the Board. SB was obliged to continue psychiatric treatment. The terms of her registration were to be reviewed in 2 years time.
SB did not comply with those conditions. In June 2008, she secured employment with Spiritus, a service operated by the Corporation of the Synod of the Diocese of Brisbane, having provided the corporation with forged documents purporting to be from the Queensland Nursing Council and the Queensland Police Service. These documents falsely stated the conditions of her registration and her place of birth, respectively. SB worked half a dozen shifts without being supervised as required.
In March 2009, SB secured employment with Southern Cross Care (Qld) Inc and worked 2 night shifts. She failed to notify the Queensland Nursing Council of either of these employments.
Also in March 2009, she sought employment with Heather Hill Nursing Agency. She falsely represented that her limited registration was due to a medical diagnosis of unstable diabetes and conspired with another person to provide a false reference about her employment at another centre. In fact her employment at the other centre was terminated for unsatisfactory performance.
SB’s conduct falls well below the standard that might be expected of her by her professional peers or the public.[2] SB engaged in calculated deception of employers or potential employers, and worked in deliberate contravention of the terms of her limited registration. She proffered forged documents to one employer and conspired to provide a false reference to another potential employer. She involved another person in her deception.
[2] Nursing Act 1992, s 104A(3)(a) definition of ‘unsatisfactory professional conduct’.
Honesty is a fundamental aspect of professionalism. SB’s misrepresentations were critical. They intentionally undermined a process put in place to uphold professional standards and protect SB, her colleagues and patients. SB’s willingness to present forged documents raises the risk that she might alter other important records, such as observation charts or other patient records, if it suited her purposes.[3]
[3]Nursing and Midwifery Board of Australia v CD [2011] QCAT 728; Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71.
SB has a personality disorder that will be taken into account in framing sanction. However, there is no evidence that it deprived her of the capacity to know what she was doing was wrong. In their joint report, Dr Sundin and Dr Apel advised the Tribunal that SB had consciousness of guilt at the time and was capable of appreciating the nature and consequences of her actions.
Although the Board did not specifically rely on this, the Tribunal notes that SB did not continue with psychiatric treatment, as required. This has particular significance to sanction. There is a real risk SB will not comply with conditions imposed in the future.
The conduct occurred when SB worked or sought to work as a nurse. The Queensland Nursing Council strove to accommodate SB’s health condition, allowing her to continue to practice under protective conditions. SB’s conscious disregard for these conditions and her actively dishonest behaviour constitutes professional misconduct[4] and conduct that is discreditable to her profession.[5]
[4] Nursing Act 1992, s 104A(3)(d).
[5] Nursing Act 1992, s 104A(3)(e).
SB is no longer registered. Her registration lapsed in June 2009 because the Queensland Nursing Council decided not to renew it. It is no surprise that the Council was not satisfied that SB was then competent and fit to practise. Although she is no longer registered, the Tribunal may make take disciplinary action because the conduct occurred when she was registered.[6]
[6] Nursing Act 1992, s 102D.
Impairment
The medical evidence before the Tribunal establishes that SB is impaired, in the sense used in the Nursing Act 1992. Under that definition, a practitioner is impaired if they have a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect their physical or mental capacity for nursing practice.[7]
[7] Nursing Act 1992, s 104A(3) definition of ‘impairment’.
Dr Galvin considered SB was fit to practise when she was treating her in August 2008. This followed her diagnosis that SB suffered from Post-Traumatic Stress Disorder and an Adjustment Disorder that was in sufficient remission for her to return to work. The misdiagnosis was induced, it seems, by SB lying to Dr Galvin about traumatic events in her past that were not true; including the severe illness of her partner, that she and a friend were raped and that the friend had committed suicide.
Although SB did not maintain regular treatment with her, Dr Galvin assessed her again in January 2009, when she advised the Council that the Adjustment Disorder was in full remission, the pre-existing Post-Traumatic Stress Disorder was stable and opined SB was fit to practise.
SB has a long history of lying about traumatic events and her personal history. She acknowledges that she has done so since her teens. The Board acknowledges SB has, during these proceedings, become progressively willing to face her past dishonesty and deal with her psychiatric condition.
It is not necessary for the Tribunal to delve into the detail of past lies. Suffice it to say that SB has an entrenched pattern of misrepresentations about serious matters. Her ability to mislead experienced psychiatrists about her personal history gives the Tribunal no confidence that it can gauge the credibility of her current assurances that she will comply with conditions the Tribunal will impose. SB’s responses to questions posed during the hearing were unconvincing. The Tribunal was left with the impression that SB said what she thought she needed to say in order to win the sympathy of the Tribunal.
SB was assessed by Dr Sundin and Dr Apel, both clinical psychiatrists, after the Board started to investigate the conduct the subject of the proceedings. The two doctors discussed their respective assessments of SB at an expert conclave presided over by a Member of the Tribunal. They produced a joint report to the Tribunal which was concise and helpful.
They agreed that, during the relevant period, SB suffered from a Factitious Disorder with predominantly psychological signs and symptoms and a Mixed Personality Disorder with avoidant, borderline and anti-social traits. Although she no longer exhibits active behavioural manifestations of the Factitious Disorder, the Personality Disorder remains.
They considered she could cope as an Assistant in Nursing in a dementia unit, but that her Personality Disorder adversely affects her ability to safely practice as a registered nurse because she struggles to acknowledge error and will not seek help.
They recommended SB fulfil some conditions prior to being allowed to return to nursing. They considered there would need to be objective evidence that SB was functioning safely with her co-workers and that she had a real and committed therapeutic relationship with a treating psychiatrist of appropriate skill and experience. They also recommended an independent health assessment, informed by a discussion between the assessor and her treating psychiatrist and the reports previously obtained about SB’s condition.
Because neither Dr Sundin nor Dr Apel had seen SB since 2010, the Tribunal requested the parties obtain a current assessment of SB’s status. Dr Leong saw SB in June and reported in July 2012.
He concurred in the diagnosis that SB suffers from a mixed Personality Disorder, with avoidant, borderline and anti-social features. He described it as severe and longstanding. He advised it would affect her capacity to safely practise as a nurse.
He agreed the primary risk to SB practising safely is that she will not acknowledge error or seek help in the workplace. He recommended psychotherapy for 2 years with the one psychiatrist.
The three psychiatrists on whose opinions the Tribunal has relied, have each recommended different periods of therapy. Dr Apel suggested 6 months, Dr Sundin, 12 months and Dr Leong, 2 years. Dr Leong said there was no golden standard, but doubted anyone with any substantial degree of personality dysfunction would gain meaningful insight within 2 years.
He accepted the treating psychiatrist would be in the best position to determine how long the therapy need continue. He did not think a 2 year period had to be mandated, if SB could not be re-registered until both her treating psychiatrist and an independent assessor both considered she was fit to return to nursing.
Dr Leong stressed the key to SB succeeding in her treatment is honest, genuine and consistent engagement with her treating psychiatrist. He expressed strong reservations about SB’s ability to do this, given her past history. The difficulty with a change in treating practitioner is that it disrupts and sets back the process of treatment. The new therapist must recommence the process of developing the necessary therapeutic relationship to successfully treat the patient.
Dr Leong recommended random drug testing based on a recent urine drug screen for SB which tested positive for benzodiazepine. He did not think the result was explained by medication SB was taking at the time, but conceded it was possible the result was a false positive.
He considered drug testing should be done at the discretion of the treating psychiatrist. He agreed with Dr Sundin that there is a co-morbidity between Personality Disorder and Substance Abuse. Drug testing can also monitor compliance with any drug therapy prescribed by the practitioner.
If she is re-registered, Dr Leong recommended close supervision and monitoring in the workplace for 18 months.
The sanction
The Tribunal is greatly assisted by the medical evidence in determining the preconditions to SB being re-registered and some of the conditions that should apply if she is successful in securing registration in the future. The orders reflect that advice.
In their joint submissions, the parties had recommended that SB must complete a minimum of 12 months full time practice as an Assistant in Nursing and have a report from her employer confirming her ability to interact safely with her co-workers. That submission picks up the recommendation in the joint report of Dr Sundin and Dr Apel.
SB is currently working as an Assistant in Nursing in Aged Care in the community. As such, she interacts infrequently with her co-workers. She is reluctant to disclose these proceedings to her current employer because she fears she will lose her job. Although that fear is understandable, it is also troubling, as it indicates that SB is still not willing to directly confront the consequences of her past conduct.
The Tribunal considers there is little to be gained in imposing conditions that do not require disclosure to her current employer and the Board has not asked for an order that SB do so. Any report, then, will be of limited value, because of the nature of SB’s interactions with her colleagues and the employer’s ignorance of the purpose of the report.
Somewhat ironically, the unregulated work that SB performs as an Assistant in Nursing entails greater personal responsibility than the limited registration she formerly possessed. She is a carer of vulnerable people in the community and works without effective supervision. This demands that she is vigilant about her own practice and about observing professional boundaries with her patients and their families.
The Tribunal acknowledges there has never been a complaint about SB by a patient. The absence of patient complaints is not an adequate assessment of quality of care. It is significant, though, that the complaints made about her by her colleagues did not relate to her care for patients.
SB has had very limited experience as a registered nurse. She was enrolled as a nurse on 7 February 2005 and registered on 3 August 2006. On 10 August 2007, a little over a year later, her registration was suspended. Although the suspension was lifted a month later, it appears she had very limited practice between then and March 2009, when the breaches of the conditions of her registration came to light.
SB agrees she should be precluded from applying to be registered for 12 months. The preclusion period relates to her dishonesty, not her impairment. She has not been registered since June 2009. Taking that period into account, she will not have been registered for 4 years before the preclusion period expires. That is a significant sanction but it properly reflects the gravity of her misrepresentations.
There may be further consequences for SB if she has is not fully compliant with her treatment. If she is not certified as fit to practise at the end of the preclusion period she will be facing the prospect of having to retrain as a nurse in order to satisfy the Board’s Recency of Practice requirements.[8]
[8]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.
If SB is able to comply with the preconditions to her re-registration, she will have a further 18 months of psychiatric treatment, supervised practice and mentoring. These conditions will support SB’s re-introduction to the profession, once she is assessed as fit to resume nursing.
SB has agreed to pay the Board’s costs of the proceedings. Given the Board has established its case against her, it is appropriate for the Tribunal to make that order.
Schedule A
Tribunal’s orders and reasons in this matter;
Part C of the application;
Report of Dr Michael Leong dated 9 July 2007, 9 August 2007 and 27 June 2012;
Joint report of Drs Josie Sundin and Greg Apel dated 26 July 2011;
Reports of Dr Sundin dated 3 August 2009 and 8 July 2010;
Report of Dr Apel dated 12 November 2010;
Report of Dr Lucille Douglas dated 28 June 2007; and
Reports of Dr Kathryn Galvin dated 31 August 2007, 25 July 2008, 11 August 2008, 25 November 2008, 19 February 2009 and 13 July 2009.
Schedule B
The following conditions apply for the first 18 months of SB’s active employment as a nurse:
SB is prohibited from practising as a nurse through a nursing agency.
SB can only provide nursing care under the supervision of a registered nurse, such nurse to be senior to SB in terms of both years of experience and position and to be approved by SB’s employer (‘the supervisor’). The supervisor need not directly supervise SB provided the supervisor is present at the same facility and is reasonably available to SB.
SB must cause a written logbook to be kept (and provided to the Board upon request) recording each shift worked and the name of the supervisor for each shift with each entry to be signed off by the supervisor.
SB must, within 2 business days of gaining employment as a nurse, notify the Board in writing of:
(i)the name and address of the employer;
(ii)the address of her place of employment as a nurse; and
(iii)the position description at the place of employment.
SB must notify the Board, within 2 business days, of a change in any of the details specified in condition 3.4.
Prior to commencing employment as a registered nurse, SB must engage the services of a mentor to be nominated by her and approved in writing by the Board.
The mentor will determine the frequency and duration of the mentoring, but the frequency will be at least monthly and the duration must be not less than 3 months.
SB must authorise the mentor to provide written reports to the Board on the following occasions:
(i)at intervals of 3 months from the commencement of the mentoring;
(ii)if the mentor holds a concern about SB’s ability to safely and competently practice nursing; and
(iii)if requested by or on behalf of the Board.
SB must authorise both her employer and the mentor to discuss with each other, as they see fit, SB’s ability to safely and competently practise nursing.
SB must, within 7 days of commencing mentoring, provide to the mentor a copy of the documents in Schedule A to these orders.
Within 7 days of commencing employment, SB must provide to her employer a copy of the documents in Schedule A to these orders and a written authority to authorise her employer to report to the Board about SB’s ability to safely and completely practice nursing on the following occasions:
(i)at intervals of 3 months from the commencement of her employment;
(ii)if the employer holds a concern about SB’s ability to safely and competently practice nursing; and
(iii)if requested by or on behalf of the Board.
SB must continue receiving such treatment from the psychiatrist as the psychiatrist recommends, SB must, within 14 days from the date of registration, provide the following written authorisations:
(i)an authorisation to the psychiatrist to report to the Board as the psychiatrist sees fit or as requested by or on behalf of the Board, as to SB’s ability to safely and competently practise nursing; and
(ii)an authorisation to the Board to advise SB’s employer if notified by the psychiatrist of any concerns in respect of SB’s fitness to practice.
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