QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Nursing and Midwifery Board of Australia v Kautianinen [2023] QCAT 555	
PARTIES:	Nursing and Midwifery Board of Australia	

(applicant)	

	v	
	amelia kautiainen	

(respondent)	

APPLICATION NO/S:	OCR025-22	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	22 March 2023 (ex tempore)	
HEARING DATE:	22 March 2023	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member J Dick SC
Assisted by:
Ms Fiona Banwell
Ms Harriet Barker
Mr Michael Halliday	
ORDERS:	1.	Grounds one and two of the referral amount to professional misconduct. 
2.	The respondent is reprimanded. 
3.	The respondent’s registration is suspended for a period of three (3) months. 
4.	At the expiration of the suspension, conditions be placed on the respondent’s registration replicating those that currently exist. Those conditions are set out in ‘Annexure A’ to this decision. 
5.	The conditions be reviewed 6 months from the date of the Tribunal Orders. 
6.	Parties are to bear their own costs. 
7.	A declaration is made pursuant to Part 7, Division 11, Subdivision 2, permitting the Board to review, amend, vary, or revoke the conditions imposed by this decision. 	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT – where the applicant Board has referred the respondent practitioner to the Tribunal seeking disciplinary findings and orders – where the respondent was convicted of one count of personation and one count of attempted fraud – where the respondent has had immediate action imposed by the Board – where the respondent’s registration was suspended for a period of time before conditions were imposed – where the conditions required her to undergo drug testing – where the respondent has largely complied with the conditions – how the conduct should be characterised – what sanction should be imposed – what conditions should be imposed
Criminal Code Act 1899 (Qld)
Health Practitioner Regulation National Law (Queensland) s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld) 
Nursing and Midwifery Board of Australia v FH [2010] QCAT 675
Re Hampton [2002] QCA 129	
APPEARANCES & REPRESENTATION:	

Applicant:	
C Wilson instructed by Clayton Utz Lawyers	

Respondent:	
Self-represented	

REASONS FOR DECISION
Background
[1]	The respondent was registered as an enrolled nurse and subject to the relevant provisions of the Health Practitioner Regulation National Law (Queensland) (National Law) (‘National Law’).  She is alleged to have engaged in professional misconduct within the meanings of paragraphs (a), (b) and/or (c) of the definition in section 5 in the National Law; and/or unprofessional conduct within the meaning of the National Law.
[2]	Ground 1 relates to the fact that the respondent pleaded guilty on 26 February 2020 to:
(a)	one count of personation under section 514(1) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’); and 
(b)	one count of attempted fraud under section 408C(1)(d) of the Criminal Code. 
[3]	She admits the conduct.
[4]	These charges related to the fact that on 3 January 2020, the applicant booked an appointment with a medical practitioner under an assumed name, that of her cousin. During the appointment, she attempted to procure a prescription for Endone, a schedule eight drug.
[5]	After her plea of guilty on 26 February 2020, she was placed on a good behaviour bond conditional upon her being of good behaviour for four months and completion of a drug and alcohol assessment referral course.  No conviction was recorded.
[6]	It is alleged that the conduct breached the conditions of the Code of Professional Conduct for Nurses 2018 (‘Code of Conduct’) and the International Council of Nurses Code of Ethics for Nurses (‘Code of Ethics’).  The specific principles of each require nurses to act honestly and ethically and not to engage in unlawful behaviour.
Ground 1
[7]	On or about 12 February 2020, in respect of an invitation to provide submissions to the Board about its proposal to take immediate action by suspending her registration, the respondent failed to make the Board aware of the charges when she provided a response.  It is alleged this specifically breached principle 1.1 of the Code of Conduct, which requires that nurses must inform Ahpra of charges, pleas and convictions relating to criminal offences.  More generally, it is alleged that this constituted a breach of the requirements for a nurse to act with honesty and integrity.
[8]	The respondent admits the failure.  She denies that she was aware of her obligations but admits she ought to have reasonably been aware.  She denies the failure amounts to professional misconduct but admits it amounts to unprofessional conduct.
[9]	The Board no longer seeks a finding that the respondent has an impairment and does not press ground 3 to be determined.
[10]	The parties have signed a statement of agreed and disputed facts.  The Board proposes that the correct approach to take is that, on the basis presently admitted by the respondent, the Tribunal may consider the appropriate sanction.  As I say, in respect of grounds 1 and 2, the parties are in agreement that the conduct amounts to unprofessional conduct, and the applicant asks the Tribunal to characterise it as professional misconduct.
[11]	Professional misconduct is conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, or inconsistent with her being a fit and proper person.  There are a number of cases in which proven criminal behaviour has been found to amount to professional misconduct.
[12]	In relation to ground 1, there are a number of features relating to this ground:
(a)	The conduct amounted to criminal offending. 
(b)	Whilst it involved only one consultation, the appointment in a false name was arranged and confirmed beforehand. This must mean it was a premeditated course of action. 
(c)	As a nurse, she must have been aware of the strict control over schedule 8 medications.
(d)	The conduct has the potential to undermine the public’s confidence in the nursing profession and to bring it in to disrepute. 
[13]	The Tribunal finds that the behaviour in relation to ground 1 amounts to professional misconduct as defined.
Ground 2 
[14]	On 12 February 2020, the respondent sent to the Board nine pages of detailed submissions, including distinct details regarding the incident on 3 January 2020.  This was one day after she was charged.  Whilst this does not prove she was aware of her obligations under principle 1.1 of the Code of Conduct, she must have been aware of the relevance, and she must have intentionally omitted to bring this to the Board for consideration.
[15]	This ground on its own may not reach the standard of professional misconduct, but it is accepted it reaches the standard of unprofessional conduct.  However, section 5 of the National Law provides that, in effect, specific instances of conduct can be accumulated to allow for a finding of professional misconduct if there are a sufficient number of them.  It is on that basis that the Tribunal comes to the conclusion that the respondent’s conduct over grounds 1 and 2 amounts to professional misconduct.
[16]	In Nursing and Midwifery Board of Australia v FH, her Honour Judge Kingham adopted the reasoning of de Jersey CJ in Re Hampton:
Honesty is a fundamental component of professional ethics.  Applicants owe a duty of good faith, candour and comprehensive disclosure on any matter that might reasonably bear on the assessment of their fitness to practice.
Sanction
[17]	There is a need for general deterrence.  That is because:
(a)	there is a need to send a message out to likeminded practitioners;
(b)	there is a need to maintain public confidence in the profession by reinforcing high professional standards; and
(c)	the circumstances relating to the first ground, followed as it was by the conduct in ground 2, takes away from any submission that the incident was isolated.
[18]	On the other hand, the Tribunal must consider the practitioner’s personal circumstances at the time of the conduct.  She suffered substance abuse disorder.  The Tribunal must also consider the personal circumstances at the time of sanction.
[19]	In that regard, her registration has been suspended for a lengthy period of time.  It appears that it was first suspended on 13 February 2020.  Then, on 17 June 2021, conditions were imposed on her registration.  As of 8 July 2022, she has been on ‘Group 2’ drug testing conditions.  The Tribunal has not been provided with an up-to-date assessment which would allow it to come to the conclusion that the respondent no longer requires ongoing monitoring.  However, in August 2022, her addiction medicine specialist advised that she required further treatment.  Since then, Dr Hayllar has supported a reduction of her testing from ‘Group 2’ to ‘Group 3’.
[20]	Another matter which must be taken into account by the Tribunal are any demonstrations of remorse.  The respondent has been largely cooperative with these proceedings.  She has largely cooperated with the conditions imposed on her, but the history of her attendance is not blemish free.  Although invited to supply evidence of at least one of those excuses for a nonattendance, she failed to do so.  The conditions are stringent, and the Tribunal recognises that.
[21]	The Tribunal has considered the comparative cases.  As said during the course of the hearing, it is apparent that each of those involved a direct link to the professional setting, whereas this does not.  However, a number of those cases mentioned involved a situation where the registrant self-reported, which, naturally enough, is considered a mitigating feature.  In one of the cases where it was not a self-notification, there was a notification made to the Board, before the Board became aware of the charges.  None of the comparable cases included charges of, or convictions for, personation; a serious step up in the criminal calendar.  Nonetheless, the cases show, fairly consistently, a range of sanction.
[22]	There have been other matters raised on this hearing.  At the present time, the respondent is on a number of conditions, which appear at page 39 of the hearing book, and are headed ‘Annexure A, Schedule of Conditions’ as an attachment to the applicant’s submissions.
[23]	What has been raised is condition 2, which requires both random urine drug testing and hair analysis.  The respondent has submitted that she should be relieved of the obligation to undertake hair analysis.  The Tribunal is of the view that there is a purpose to having the hair and urine analysis.  The hair analysis clearly picks up lower concentrations than the urine analysis and allows for a longer-term assessment.  That is, over about three months, rather than more recently.  This is a matter which the Tribunal considers that the applicant could raise with the Board, rather than this Tribunal, and that if she does so, she could provide supporting material, which has not been supplied to the Tribunal.
[24]	The other matter is that she wishes to have the analysis at group 3 frequency, rather than group 2.  In that regard, the Tribunal feels that this is a matter, too, where there has been insufficient material placed before it by the applicant and that should be a matter, if she wishes to do so, that goes to before Board.  That supporting material may include a fuller report from Dr Hayllar.
[25]	So, of the issues which have been raised, the Tribunal has found that the conduct, combined, amounts to professional misconduct.  Further, that in the circumstances and looking at the comparative cases, there is consistency in the comparatives of a reprimand being imposed, because that, in itself, is a serious form of censure and condemnation and almost always follows a finding of professional misconduct.  The Tribunal is well aware that the principle behind imposing sanctions in matters such as this is not punishment, but it is largely concerned with the protection of the public.
[26]	The orders of the Tribunal are as follows:
1.	Grounds one and two of the referral amount to professional misconduct. 
2.	The respondent is reprimanded. 
3.	The respondent’s registration is suspended for a period of three (3) months. 
4.	At the expiration of the suspension, conditions be placed on the respondent’s registration replicating those that currently exist. Those conditions are set out in ‘Annexure A’ to this decision. 
5.	The conditions be reviewed 6 months from the date of the Tribunal Orders. 
6.	Parties are to bear their own costs. 
7.	A declaration is made pursuant to Part 7, Division 11, Subdivision 2, permitting the Board to review, amend, vary, or revoke the conditions imposed by this decision.