Disciplinary Decisions: Health Ombudsman v Antley  QCAT 472
Delivered on 19 December 2016
Referral to the Tribunal from the Health Ombudsman. Consideration of appropriate orders as the registrant had surrendered her registration. Consideration of whether the Health Ombudsman was entitled to costs.
The referral concerned the conduct of a registered nurse. The matter was referred to the Tribunal by the director of the Health Ombudsman pursuant to section 103(1) (a) of the Health Ombudsman Act 2013 (Qld) (OHO Act).
The respondent had surrendered her registration on 12 April 2016, but section 21(2) of the OHO Act allows a complaint against such a person to be deal with as if that person were still registered.
The charges against the registrant included:-
- Charge 1 – on or about 15 July 2014, the respondent stole at least two blank authority prescriptions, the property of Dr Stephen Fanning, from the premises of her employer;
- Charge 2 – on or about 16 July 2014, the respondent forged an authority prescription, the property of Dr Fanning, for Endone, a drug of dependence under Schedule 8 of the Standard for the Uniform Scheduling of Medicines and Poisons, and obtained the drug using that prescription from Chemist Warehouse Sandgate;
- Charge 3 – on or about 18 July 2014, the respondent attempted to obtain Endone using a forged script;
- Charge 4 – on or about 18 July 2014, the respondent forged an authority prescription for Endone 5mg 20 tablets and obtained the drug from Good Price Pharmacy, Deagon;
- Charge 5 – the respondent failed to notify the National Board that she had been charged with criminal offences punishable by 12 months imprisonment or more; and
- Charge 6 – the respondent failed to disclose that she had forged an authority prescription and obtained the drug using that prescription to the Queensland.
All except charge 5 alleged professional misconduct.
The original complaint had been made by a pharmacist who suspected misconduct in relation to the presentation of the prescriptions. That report was made in accordance with the pharmacist’s mandatory reporting obligations as outlined in section 142 of the Health Practitioner Regulation National Law Act (Qld) (National Law).
A police investigation was conducted. The respondent was charged with one count of fraud and one count of stealing. She pleaded guilty and was fined $500.
While she was initially legally represented, the respondent produced medical evidence about her wish to no longer participate in the proceedings. The matter proceeded without the respondent’s participation.
It was submitted by the Health Ombudsman that it was an appropriate case for inclusion of a reprimand together with an order that the respondent be disqualified from applying for registration for 9 months from the date of the order.
It was noted by the Tribunal that disqualification orders usually range from 6 months to 3 years and that “general deterrence of such conduct is unlikely to occur unless loss of registration for at least 12 to 18 months is known to be a probable consequence of such activity”. In those circumstances, the proposed sanction tendered to be on the lighter side. Given that the respondent surrendered her registration some 7 months earlier (leading effectively to a 16 month suspension), the Tribunal was prepared to order the suspension proposed and include a reprimand in the order.
In considering costs, the Tribunal made reference to the repeal of section 195 of the National Law when the OHO Act was enacted. In accordance with section 195, the Tribunal had power to “make any order about costs it considers appropriate”.
The relevant provision in relation to costs is now section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which provides that the parties must each pay their own costs unless the interests of justice require a costs order to be made.
After a lengthy consideration of the circumstances and the appropriateness of an order for costs, the Tribunal decided that an order for costs should not be made. In coming to that decision the Tribunal outlined a number of reasons why the interests of justice did to not support an order that the respondent nurse pay the Health Ombudsman’s costs including the disproportionate and punitive effect of making a costs order in this case in circumstances where the jurisdiction is not “punitive” merely “protective”.
The Tribunal ordered that: -
- The respondent had acted in a way that constituted professional misconduct as alleged in charges 1, 2, 3 and 4;
- The respondent had behaved in a way that constituted unprofessional conduct as alleged in charge 5;
- The respondent has no case to answer in relation to charge 6;
- The respondent is reprimanded;
- The respondent is disqualified from applying for registration as a health practitioner for 9 months; and
- The parties must bear their own costs.