Nursing and Midwifery Board of Australia v CD

[2011] QCAT 728

CITATION: Nursing and Midwifery Board of Australia v CD [2011] QCAT 728

PARTIES:	Nursing and Midwifery Board of Australia (Applicant/Appellant)
v
CD (Respondent)

APPLICATION NUMBER:   OCR030-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: 2 March and 20 July 2011

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by:
Ms Mary Barnett
Ms Carol Crack
Mr Paul Murdoch

DELIVERED ON: 9 September 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.   CD is not entitled to apply for registration until:

1.1 A period of 3 years from the date of these orders has elapsed;

1.2 CD has completed a course of education addressing professional ethics and the relationship between personal misconduct and fitness to practice, such course or courses to be nominated by CD and approved in writing by the Board;

1.3 CD has provided a report from the provider of the course or courses at paragraph 1.2 confirming successful completion by CD;

1.4 CD has undertaken counselling with a clinical psychologist (‘the counsellor’), to be nominated by CD and approved in writing by the Board, to enable CD to develop insight into why she engaged in the behaviour which is the subject of these proceedings.  The counselling is to take place at a frequency determined by the counsellor until the counsellor holds the opinion that CD has developed full insight into the behaviour or until further counselling is unnecessary;

1.5 CD has provided to the Board a report of the counsellor that CD has developed full insight into her offending behaviour or that further counselling is unnecessary;

1.6 CD has undergone treatment with an addiction medicine specialist, to be approved by the Board, and must comply with all reasonable directions of that specialist who is to be an expert in the treatment of substance abuse (‘the specialist’), at a frequency and for the period determined by the specialist;

1.7 CD has remained abstinent from illicit drugs and drugs of dependence, except as prescribed by a medical practitioner, during the 6 months prior to CD’s application for registration (‘the abstinence period’);

1.8 CD has submitted to supervised random UDS testing during the abstinence period at the direction and supervision of the specialist; the frequency of the testing to be:

1.8.1    Not less that twice per week for the first 3 months; and

1.8.2    Thereafter at the discretion of the specialist but at least once a week;

1.9 CD has provided the Board with the original test results to demonstrate compliance with paragraph 1.8;

1.10     CD has provided the Board with a report from the specialist as to CD’s fitness to practise and any conditions that ought be imposed upon CD’s registration.

2.   The Board must impose the following conditions upon any future registration of CD for a period of 2 years:

2.1 CD can only provide nursing care under the indirect supervision of a registered nurse, who is senior to CD in terms of years of experience or position (‘the supervisor’);

2.2 The supervisor must be approved by CD’s employer;

2.3 CD 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;

2.4 Within 2 business days of gaining employment as a nurse, CD must notify the Board in writing of:

2.4.1    The name and address of the employer, and if listed with a nursing agency, the name and address of that agency;

2.4.2    The address of her place of employment as a nurse;

2.4.3    The position description at the place of employment;

2.4.4    The name and contact telephone numbers of her supervisors at the place of employment, and if listed with a nursing agency, the name and contact telephone numbers of the person with whom she liaises at the agency;

2.5 Within 2 business days of a change in any of the details required pursuant to paragraph 2.4 of these orders CD must notify the Board;

2.6 Within 7 days of commencing employment, CD must provide a copy of these orders and a written authority to her employer to provide a written report to the Board about her fitness and competence to practise on the following occasions:

2.6.1    At intervals of 3 months from the commencement of her employment;

2.6.2    If the employer holds a concern about CD’s fitness or competence to practise; and

2.6.3    If requested by the Board;

2.7 If CD is subject to ongoing treatment by the specialist, CD must authorise the specialist to report to the Board as to CD’s fitness to practise as the specialist sees fit, or as requested by the Board;

2.8 If CD is subject to ongoing treatment with the specialist, CD will authorise the Board to advise her employer if notified by the specialist of any concerns in respect of CD’s fitness to practice.

3.   All costs and expenses in relation to the matters set out in orders 1 and 2 are to be borne by CD.

4.   The Board may, at any time, provide to the counsellor or the specialist a copy of relevant documents the Board considers appropriate, including, but not limited, to these orders and the Tribunal’s reasons.

5.   Within 28 days or such longer period as the Board may allow, CD must pay the Board’s costs of these proceedings fixed in the sum of $13,500.

CATCHWORDS: 

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – NURSE – where nurse suspended after charged with a drug offence – whether nurse worked after being informed of suspension – where later placed on limited registration – where committed offences of fraud and disciplinary offences of deceptive conduct and breaches of her conditions of registration – whether failure to produce results of random testing is unsatisfactory conduct or a breach of the conditions

Health Practitioners (Professional Standards) Act1999, ss 405L, 405P(1), (5)
Nursing Act 1992, ss 67, 68, 102D, 116(4)

Briginshaw v Briginshaw (1938) 60 CLR 336 applied
HCCC v Maureen Jan Swinhoe [2011] NSWNMT 12 distinguished
HCCC v Sohler [2010] NSWNMT 18 distinguished
Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 distinguished

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Ms Gallagher of counsel, instructed by Rodgers Barnes & Green for the Board

RESPONDENT: Mr Rebetzke of counsel, instructed by Roberts & Kane for CD

REASONS FOR DECISION

1. The Nursing and Midwifery Board of Australia has asked the Tribunal to take disciplinary action against CD for her conduct between April 2005 and November 2009, while she was a registered nurse.  She admitted most of the charged conduct, which involved criminal offences and other deceptive conduct and drug use.  However, she strenuously denied a charge that she continued to work as a nurse after the then Queensland Nursing Council[1] notified her that her registration was suspended.  CD also contested a charge relating to her failure to produce the results of random urine test results.

   [1]The functions of the Council have been assumed by the Nursing and Midwifery Board of Australia.  These proceedings were commenced by the Council under the Nursing Act1992 since repealed.  The effect of the transitional provisions is these proceedings continue to be dealt with as if the Act had not been repealed: Health Practitioners (Professional Standards) Act1999, s 405P(1); s 405P(5): definitions of existing QCAT proceeding and registration proceeding in relevant Act; s 405L: definitions of amending Act and repealed Health Practitioner Registration Act.

2. During the period charged, CD suffered from or was in treatment for drug dependency.  In February 2007, the Queensland Police intercepted CD attempting to procure heroin.  The Council arranged for Dr Nigel Prior to conduct a health assessment and he diagnosed her as having a Poly-substance Abuse Disorder involving Opiates, Cannabis and Midazolam.  He questioned her capacity to practise nursing safely.[2]  When the Executive Officer of the Council received Dr Prior’s assessment in early April 2007, she took action to suspend CD immediately.  

   [2]        Nursing Act 1992, s 67.

3. In June 2008, the Council granted CD limited registration subject to conditions, which included abstinence from illicit drugs and a regime of treatment, counselling and random drug testing.  Although she was entitled to practise under those conditions, in fact CD has not practised as a nurse since 13 April 2007, some 4 ½ years ago.  She is not currently registered.[3]

   [3]All the charged conduct occurred while CD was registered and the Tribunal can proceed although she is no longer registered: Nursing Act 1992, s 102D.

4. As well as what sanction should be imposed, the parties are in dispute about two matters:

a)whether CD was notified of her immediate suspension (charges 1, 2 and 3); and

b)whether she failed to comply with a condition of practise by not providing random urine test results for certain months (charge 4).

1. Otherwise, CD admitted criminal offences for fraud and drug possession; providing false information to investigators and medical practitioners; falsifying the results of a urine test result; and illicit drug use (charges 5 to 11 (as amended) inclusive).

Did the Executive Officer inform CD on 5 April 2007 that she had suspended her effective immediately?

1. This case involves powers conferred by the Nursing Act 1992 (since repealed).  Under that Act, if the ability of a nurse to practise nursing was seriously impaired to such an extent that a patient’s health or safety might be at risk, the Queensland Nursing Council had the power to suspend the nurse by giving written notice.[4]  In certain circumstances, the Executive Officer of the Council could suspend a nurse immediately, until the next Council meeting, by giving oral notice.[5]  The Executive Officer could only do so after forming the opinion there was a potential serious risk to a patient’s health or safety that justified suspending the nurse’s registration immediately.

   [4]        Nursing Act 1992, s 67.

   [5]        Nursing Act 1992, s 68.

2. In this case, the Executive Officer, Ms Morrison, formed that opinion after receiving Dr Prior’s report.  CD has not disputed immediate suspension was justified in the circumstances.  However, she denied Ms Morrison gave her oral notice of the suspension.  This is important for charges 1, 2 and 3, which allege she worked as a nurse after Ms Morrison had notified her that she had suspended her registration, effective immediately.

3. There is no dispute that Ms Morrison did make a phone call.  CD’s case is that Ms Morrison spoke to her then flatmate, TD, not to her.  She produced a note that she says TD wrote, which, she argued, proved the point.  CD said she has been unable to locate TD, with whom she says she parted on bad terms.  Neither party sought to lead expert evidence about the note.  Counsel for CD invited the Tribunal to accept it as genuine.  The Board argued the Tribunal should reject it.

4. The process used by Ms Morrison to identify the person she spoke to presented some difficulties for the Board’s case against CD.  The Tribunal accepts, as does CD, that Ms Morrison believed she was speaking to the right person.  However, she did not ask any of the expected questions to verify a person’s identity, such as her date of birth or nursing registration number.

[10]  CD has maintained from the earliest that Ms Morrison did not speak to her.  Her counsel invited the Tribunal to infer she was truthful in that evidence, given the other very serious conduct she has admitted to.  He questioned her motive to lie about this matter, when she was willing to admit so much, including the counts of fraud and fabricating a urine test result.

[11]  Ultimately, taking into account the serious consequences for CD of findings against her on this matter, the Tribunal is comfortably satisfied[6] that Ms Morrison did speak to CD. 

[6]        Briginshaw v Briginshaw (1938) 60 CLR 336.

[12]  Ms Morrison does not have an independent recollection of the call.  In her former role with the Council, she suspended some 60 nurses by phone over a 5 year period.  She appreciated the weighty responsibility that accompanied that power.  She understood and took very seriously her obligation to communicate both the fact of the suspension and the processes provided for in the Act.  For this reason, she had adopted the practice of reading out the written notice of suspension that she would later send to the nurse, as well as the relevant provision of the Act.

[13]  Ms Morrison was satisfied she was talking to CD and would not have proceeded with the call if she had any doubt about that.  The Tribunal has judged Ms Morrison’s assessment of identity in the context of her heightened appreciation of the importance of the call.  If there was a false note in the speaker’s responses to her, the Tribunal accepts that Ms Morrison would have noted and responded to that.

[14]  The call was witnessed by Ms Baldwin, then a Nurse Advisor working for the Council, who heard both sides of the conversation, because the call was made on speaker-phone.  She also heard nothing that made her question whether Ms Morrison was speaking to the right person.

[15]  Ms Baldwin did have an independent recollection of the call, because she has witnessed only one call of that nature.  She was able to give evidence based on her file note and her own recollection.  The detail she gave explained the foundation for Ms Morrison’s confidence that she spoke to CD.

[16]  Although Ms Morrison’s process to identify the speaker was deficient and risky, she did have some clear indications she was talking to CD.  The person who answered the phone identified herself as CD.  She said the call had woken her.  The speaker sounded sleepy and said she had done “night duty” the night before.  That is consistent with CD’s working life at that time.  The speaker said she was working for a nursing agency, CS.  Ms Morrison told her she would have to notify her employer.  The speaker was aware of the health assessment by Dr Prior. 

[17]  CD said TD knew this because she had spoken to her in detail about her predicament.  Even if the Tribunal was willing to accept that explanation, the conversation with Ms Morrison was quite lengthy.  It would be difficult to maintain a convincing deception about such an important matter during a lengthy call.  Neither Ms Morrison nor Ms Baldwin heard anything in what the speaker said or the way in which she responded to cause them to question her identity.

[18]  Ms Baldwin recalled the speaker was upset and did not want the Council to think poorly of her.  This was not a call in which the speaker had little participation.  It is clear that she asked questions and expressed the emotion you would expect from a person in her situation.

[19]  Ms Baldwin recalled Ms Morrison did not rush, was kind and gave the nurse many opportunities to ask questions.  She encouraged the speaker to seek help.  Ms Morrison explained more than once that the suspension was immediate and that the nurse could make a submission to the next Council meeting. 

[20]  The date for CD to make a submission to the next Council meeting, 30 April, is of some significance.  This date was stated in the letter that Ms Morrison said she would have read out to the nurse.

[21]  CD produced a note that she says her flatmate, TD, wrote for her after her conversation with Ms Morrison.  That note records that the suspension took effect on 13 April. 

[22]  During evidence, Ms Morrison was invited to say both “13^th” and “30^th”, and did so.  She speaks with quite a strong accent, which CD’s counsel submitted could lead to a listener confusing the two dates.  While that might be accepted, it does not bolster CD’s argument.  It does not establish that the note was written by TD.  It is consistent with CD being the recipient of the call and misunderstanding what was said to her, despite Ms Morrison’s efforts to ensure the nurse understood the effect of the suspension.

[23]  The 13^th is also the last date that CD worked.  On that day, her employer, which had been notified of her suspension, made contact with CD about it.  Her evidence was that she had intended not to work beyond that date, but she had not done anything to alert her employer to this.

[24]  At the heart of this dispute is CD’s credibility.  At the time of the phone call, CD had a complex substance abuse problem which she had been battling for some 7 years.  She had recently relapsed into heroin use.  She faced criminal charges that she denied, although she later pleaded guilty to them.  She was deceptive and misleading in her consultation with Dr Prior knowing his report was to inform the Council in its decision whether to take action about her registration. 

[25]  Her dissembling is consistent with a propensity to misrepresent the situation or to act fraudulently and then cast the blame for her conduct on to others.  She defrauded Medicare in April and May 2005 when she made 10 claims for 23 services totalling $2,805, receiving a total cash benefit of $1,982.00 (charge 9).  She lied to the officers investigating the offence (charge 10).  CD told Dr Prior she was angry with the treating doctor, although she admitted using the money to buy heroin.

[26]  Between January and July 2006, she defrauded WorkCover by failing to disclose that she had worked during that period, thereby receiving benefits of $7,082.66 to which she was not entitled (charge 11).  She gave shifting accounts about this offence to Dr Prior and Dr Apel, to whom her lawyers referred her.  In one account, she suggested that WorkCover had not received her paperwork.

[27]  In August 2009, CD fraudulently altered the result of a urine drug screen to read negative for cannabis, when the true result was positive (charge 12).  She said she panicked.  There had been an earlier positive result, which she said was a result of a drink spiking incident.  She did not think the Council believed her.

[28]  Altering a test result takes some time and thought.  The decision to alter the result might be an impulsive one, but the task cannot be completed spontaneously, without time for reflection.  At around this time, CD had applied to renew her registration.  She denied her decision to alter the results was in any way linked to that application.  However, CD also said she was trying to buy herself some time and to appear to be complying with the conditions.  The coincidence in timing gives rise to the inference that her decision to alter and submit the test result was connected with her application to renew her registration.

[29]  CD did disclose this to the Council, after the Queensland Nurses Union became involved in providing assistance to her.  Again, the Board sought to make something of a coincidence in timing.  Around the same time, Dr Quinn produced a print out of her medical records and test results.  The Board invited the Tribunal to conclude that this brought the false report to the attention of CD’s lawyer and this is why she disclosed it.  It is not necessary for the Tribunal to make that finding.  It does not accept CD’s explanation that this was her first opportunity to raise the matter.  She could have done that at any time.  This is another example of an attempt to cast responsibility onto others.

[30]  Finally, CD has been persistently misleading about her drug use during consultations with Dr Prior and Dr Apel.  She has admitted lying to or misleading Dr Prior in March 2007 (charge 7) about her drug use and treatment.

[31]  In a later consultation with Dr Prior (July 2007), whilst more forthcoming, CD was still not completely truthful about her past history of drug abuse or the substances she was then consuming.  This was consistent with what Dr Prior learned when he investigated her history with the Peel St Clinic who treated her over a number of years.

[32]  When he interviewed CD in February 2011, Dr Apel considered she did not display much awareness of the psychological side of her drug dependency.  By then, his diagnosis was that her opiate dependency was in remission but there was ongoing cannabis abuse.  He considered her purposeful evasiveness and untruthfulness during her interviews with Dr Prior in 2007 reflected where she was in the trajectory of her illness.

[33]  Subsequently the Council made Dr Apel aware that when he made that assessment in February 2010, CD had misled him too.  She failed to advise him of a number of important matters: positive drug screens in January and June of 2009; charges of fraud and false representation in June and July 2004 and that she had fraudulently altered a drug screen result for June 2009.

[34]  At different times, CD has given conflicting or inconsistent accounts about her criminal offences and her drug use and treatment to Dr Prior, Dr Apel and to Council.  She showed a propensity to blame other people or her circumstances for her conduct.  This left the Tribunal with the impression that, during that period, CD said what she thought she needed to say in order to protect herself.  This fundamentally undermines her credibility about the conversation with Ms Morrison.  Inventing a subterfuge that Ms Morrison spoke to her flatmate (not to her) is consistent with that pattern, especially at a time her judgment was impaired by her drug dependence. 

Should CD be disciplined for not producing urine tests from July to September 2008 and in February 2009?

[35]  This allegation relates to a condition imposed on CD’s registration on 4 July 2008.  It required her to:

Undergo random urine testing…no less frequently than monthly, at the nurse’s own expense, under the supervision and direction of the above practitioner.  (The urine test results are to be forwarded to Council on a monthly basis.)

[36]  The above practitioner is a reference to the previous condition, which required CD to nominate an Addiction Medicine Specialist and provided for the Council to approve the nomination.  In fact, the Council did not approve a practitioner as anticipated by the condition.

[37]  CD’s counsel argued the obligation to undergo random testing did not arise until the Council had approved a practitioner.  As it had not, the obligation did not arise.  There are some practical difficulties with the drafting of the condition.  For example, it does not allow time for the nurse to put a testing regime in place or protect the nurse who, with their best endeavours, is unable to do so.  However, it is clear enough the obligation to undergo testing is not dependent on the Board providing written approval of the supervising practitioner.

[38]  CD nominated a counsellor from the Peel St Clinic.  In August 2008 she was informed the Clinic did not have the resources to offer random testing and reporting.  CD informed the Council of this shortly after she was advised.  Then her sister in law was murdered and she travelled to another State to help her brother with his two children.  None of this information was contested by the Board.

[39]  Technically, her failure to undergo and provide test results from July to September 2008 constituted a breach of the condition.  However, it is not appropriate to impose any penalty for this.  CD made genuine attempts to comply with the condition in July 2008.  In the tragic circumstances that she then faced, her further non-compliance until October 2008 should be excused.

[40]  When she returned to Queensland, she arranged for Dr Quinn to supervise the testing, which occurred monthly from October to December 2008.  There was no test done in February 2009, although CD did undertake two in the previous month.  By this, CD demonstrated her willingness to comply with the condition.

[41]  The requirement was for her to undertake random urine tests.  The essence of a random test is that the person screened does not know precisely when the test will occur (and therefore cannot prepare to be or appear to be drug free).  While it was within CD’s power to put in place the arrangements for a regime of random testing, she could not control how the supervising practitioner implemented it.  

[42]  The Tribunal is surprised the Board would pursue a nurse about an isolated omission, which occurred through no fault on her part, and when there had been two tests the month before, the second being on the 30^th of the month.  The Tribunal is not satisfied that CD is responsible for breaching the condition in February 2009.

Disciplinary Findings and Sanction

[43]  CD has admitted conduct that demonstrates she was not fit to practise when it occurred.  The Tribunal has found that she continued to work after she was notified her registration had been suspended.  At the time she was using illicit drugs and had been assessed by Dr Prior as presenting a risk to patient safety. 

[44]  Viewed as a whole, her conduct is conduct discreditable to the nursing profession.  Further, it was professional misconduct to work after she was suspended and to alter and submit a false test result.  The period over which the conduct occurred, the scope of CD’s dishonesty and her willingness to work while she represented a risk to patients justifies her registration being cancelled.  There is no utility in that order as she is not registered.

[45]  The purpose of disciplinary proceedings is primarily protective, not punitive.  The objects are to protect the public, maintain public confidence in the profession, and maintain professional standards.  Bearing those objectives in mind, the question for the Tribunal is when and under what conditions CD may apply for registration and what conditions, if any, the Board should impose if she is re-registered.

[46]  The Board has formulated proposed conditions that CD has not opposed.  Some apply before registration and others for the first 2 years after she is registered.  They are onerous and rigorous and are directed to CD’s appreciation of her ethical obligations as a nurse, treatment of her conditions and abstinence from illicit drug use.  The Tribunal is satisfied that most of them are appropriate.  They draw upon recommendations made in the reports from both Dr Prior and Dr Apel.

[47]  More contentious is the period during which the Tribunal should preclude CD from applying for registration.  The Board has asked for a period of 8 years.  The authorities referred to by the Board do not support a period of that length.[7]  The Tribunal accepts the submission by CD’s counsel that it should not impose a sanction which is crushing in its effect.

[7]HCCC v Maureen Jan Swinhoe [2011] NSWNMT 12; HCCC v Sohler [2010] NSWNMT 18; Nursing and Midwifery Board of Australia v FH [2010] QCAT 675.

[48]  CD has had a long struggle with poly-substance abuse.  She started using cannabis socially at an early age.  Her former husband introduced her to heroin in her mid 20s and she soon started to use it daily.  By September 2000, she had separated from her husband and started her difficult and long struggle to address her drug dependence.  She moved to Brisbane, where her mother could support her in this endeavour and she obtained her nursing qualifications.  It is a notable achievement that CD was able to extricate herself from that relationship and complete a tertiary course while undergoing drug therapy.

[49]  Dr Prior and Dr Apel both spoke of the long journey involved in drug rehabilitation.  It is not a straight path.  It is not uncommon for recovering addicts to relapse into drug use.  In CD’s case, one of her relapses occurred after she was hospitalised for a work injury and treated with opiates.  Much of the conduct took place when she was dependent on or abusing drugs and can be partly attributed to her condition.

[50]  Dr Apel considers CD’s dependence condition is in remission.  Dr Prior is more reserved in his assessment.  What concerns the Tribunal is that during times that, according to Dr Apel, CD was not drug dependent, she continued to act dishonestly.  She altered the test result.  She misled Dr Apel about important matters when he assessed her to report on her fitness to practise.  She gave evidence to this Tribunal that has been rejected.

[51]  This indicates that CD is not currently fit for registration.  But it does not support a preclusion period of 8 years.  CD has not practised as a nurse for 4 ½ years, although for much of that time she did have the right to practise under conditions.  CD made genuine attempts to comply with the conditions until her registration lapsed, even though not practising.  CD will most likely have to undertake further training to demonstrate her competencies after such a lengthy period out of the profession.

[52]  A further preclusion period is justified to reflect the seriousness of the conduct admitted or found against CD.  In the circumstances of this case, the Tribunal will impose a preclusion period of 3 years.  This is a considerable penalty when added to the period for which she was suspended (15 months).  The Tribunal has not taken into account the period since June 2008, when CD was granted limited registration.  The conditions then imposed were protective only and related to concerns about her fitness to practise, not the conduct later charged.

[53]  The Board has sought a costs order against CD.  The Board has succeeded in establishing its case against CD.  Its activities are funded by the profession.  There are no circumstances that would count against the Board securing an order for costs to the statutory maximum.[8]

[8]        Nursing Act 1992, s 116(4).