QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v Lemon [2020] QCAT 266	
PARTIES:	DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN	
	(applicant)	
	v	
	GARRY ARTHUR LEMON	
	(respondent)	
APPLICATION NO/S:	OCR290-19	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	29 July 2020	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member D J McGill SC, 
Assisted by: 
Ms M Barnett, 
Ms L Dyer 
Professor M Lupton.  	
ORDERS:	1.	The Tribunal decides that the respondent behaved in a way that constitutes professional misconduct.  
2.	The Tribunal reprimands the respondent.
3.	The parties bear their own costs of the proceeding. 	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – convictions of fraud offences – mitigating circumstances - sanction
Health Ombudsman Act 2013 s 104, s 107
Health Ombudsman v Chaffey [2020] QCAT 54
Medical Board of Australia v de Silva [2016] QCAT 63
Medical Board of Australia v Martin [2013] QCAT 376
Nursing and Midwifery Board of Australia v Hawthorne [2018] VCAT 890
Nursing and Midwifery Board of Australia v Johnson [2020] VCAT 205	
REPRESENTATION:	

Applicant:	
Office of the Health Ombudsman	

Respondent:	
Hall Payne Lawyers	

APPEARANCES:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013, s 103(1)(a) and s 104.  In accordance with that Act, I am sitting with assessors Ms Barnett, Ms Dyer and Professor Lupton. The respondent is a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that the respondent engaged in professional misconduct, in that he has been convicted of four counts of fraud.  
[2]	The parties have provided the Tribunal with an agreed statement of facts.  The respondent, who has been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct.  The parties have provided joint written submissions to the Tribunal, and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009, s 32.  
Facts
[3]	The Tribunal accepts the facts set out in the agreed statement of facts.  They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1954 and is now 66.  He was first registered as a registered nurse in 1978.  At the relevant time, the respondent was working as a registered nurse at a regional hospital in Queensland. On 6 February 2017 the respondent pleaded guilty in the District Court to four charges of fraud. On 10 February 2017 he was sentenced to twelve months imprisonment, suspended forthwith for an operational period of two years.  
[4]	The circumstances of the offending were that the respondent, a co-offender and two other men set up a self-managed superannuation fund for the purpose of purchasing and operating a business. All four were trustees of the fund, and operations on the fund’s bank account were to be conducted by all four together.  In 2015 the business ran into difficulties, one of the trustees became bankrupt, and the property owned by the fund was sold, with the proceeds paid into the trust account. The co-offender then withdrew most of those funds, without the agreement of all trustees, by the use of a computer banking system which enabled him to operate on the account alone. This involved thirteen transactions, and the respondent was charged on the basis that he provided support and assistance in this process, in respect of four transactions.  In the case of three transactions, money totalling $17,692.52 was transferred to his bank account; in the fourth, $8,000 was transferred away from the fund’s account with his assistance.  It appears that he was misled by the co-offender about the legitimacy of these transactions.  
[5]	The respondent when interviewed by the police cooperated and made admissions in respect of his involvement with the conduct leading to the charges. He was remorseful and provided the court with favourable references. The respondent advised the applicant and AHPRA of the charges brought against him, and following his conviction, his solicitors advised the Board of the conviction and sentence.  From his affidavit it is clear that the respondent is embarrassed and ashamed about his behaviour, and is quite remorseful.  There were no other notifications or finding about the respondent’s conduct prior to this, and there have been no such notifications since.  He has no other criminal history.  The respondent remained employed by and working at the hospital until June 2019, when he resigned to provide support for a family member; he has not worked as a nurse subsequently, and is approaching retirement age.  
Analysis
[6]	The parties have in joint submissions agreed that the relevant conduct of the respondent amounted to professional misconduct. The effect of a joint submission was discussed by the then Deputy President, Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31].  The characterization of the conduct and the determination of an appropriate sanction remain matters for the Tribunal to decide.  
[7]	I am aware of the definitions of professional misconduct and unprofessional conduct in s 5 of the National Law. The conviction of each offence amounted to unprofessional conduct by definition because of the element of dishonesty involved, and I agree that in the circumstances the respondent’s conduct amounted to professional misconduct, as unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.  
[8]	Although the conduct and the offending did not involve the respondent’s acting as a nurse, and was not connected with the practice of the profession, the element of dishonesty justifies the characterization agreed by the parties.  As pointed out in the submissions, this behaviour was inconsistent with provisions in the Code of Conduct developed by the Nursing and Midwifery Board of Australia.  
[9]	This characterization is consistent with earlier decisions of this and other Tribunals.  In Health Ombudsman v Chaffey [2020] QCAT 54 a registered nurse who had been convicted of social security fraud in relation to Centrelink benefits was found to have behaved in a way which amounted to professional misconduct. The Deputy President said at [12]: “Serious criminal offending, including offences of dishonesty, is quite clearly capable of being caught by [the] definition and constituting professional misconduct.” He referred at [13] to a number of previous decisions in which offending of a similar nature had been found to constitute professional misconduct, to which may be added Nursing and Midwifery Board of Australia v Hawthorne [2018] VCAT 890 (insurance fraud) and Nursing and Midwifery Board of Australia v Johnson [2020] VCAT 205 (convictions for theft).  
Sanction
[10]	In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant to the assessment of the risk to the public, and are shown here by the respondent. It is also relevant that the respondent has not in fact practiced as a nurse since June 2019, so there has been a de facto suspension of his registration for about thirteen months.  He may well never work again as a nurse anyway.  
[11]	It is relevant that there was no lack of candour with the Board and the applicant, in relation to the charges and the convictions, and in relation to this proceeding. It is also relevant to take into account his many years of good conduct as a registered nurse, and the absence of any other notifications, or any other criminal history. In the circumstances, there is no need to be concerned about personal deterrence, although the considerations of general deterrence and the maintenance of professional standards remain.  In the particular circumstances of this case, the Tribunal agrees that those considerations can be adequately met by a reprimand. A period of preclusion from practice, or conditions on registration, is unnecessary and inappropriate, particularly in view of his remorse.  
[12]	The decision of the Tribunal is therefore:
1.	The Tribunal decides that the respondent behaved in a way that constitutes professional misconduct.  
2.	The Tribunal reprimands the respondent.
3.	The parties bear their own costs of the proceeding.