QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v McNeal [2021] QCAT 370	
PARTIES:	health ombudsman	
	(applicant)	
	v	
	rachel courtney mcneal	
	(respondent)	
APPLICATION NO/S:	OCR268-20	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	9 November 2021 (ex tempore)	
HEARING DATE:	9 November 2021	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member J Robertson
Assisted by:
Ms Fiona Banwell
Dr Jacqueline Jauncey-Cooke
Mr David Lyons	
ORDERS	1.	Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.
3.	Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013, the respondent is disqualified from applying for registration for a period of 12 months.
4.	Each party to the proceedings is to bear that party’s own costs for the proceeding.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent stole  prescriptions, forged the contents and unlawfully obtained schedule 8 drugs for her own use – where the respondent pleaded guilty and was convicted of one episode  of the conduct but was  not charged for other instances of the same conduct – whether the respondent is identified as the same person who committed the other offences – whether such conduct should be characterised as professional misconduct – what sanction should be imposed
Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Briginshaw v Briginshaw (1938) 60 CLR 336	
APPEARANCES & REPRESENTATION:		
Applicant:	M Price of the Office of the Health Ombudsman	
Respondent:	No appearance	

REASONS FOR DECISION
[1]	The Director of Proceedings on behalf of the Health Ombudsman (the applicant) filed an application in the Tribunal on 31 August 2020 seeking findings and orders by way of disciplinary action against Rachel Courtney McNeal (the respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (The Act). 
[2]	The respondent was, at all relevant times, registered as a registered nurse with the Nursing and Midwifery Board of Australia (the Board).
[3]	The application contains three strikingly similar allegations including, in allegation one, admitted conduct by the respondent, which involved stealing a prescription, forging the contents and uttering the document to a chemist and obtaining, unlawfully, schedule 8 controlled drugs for her own use. 
[4]	The hearing brief contains a Verdict and Judgment Record from the respondent’s appearance in the Southport Magistrates Court on 30 January 2020, which is proof of her conviction on that day of one count of stealing, one of forgery and uttering, one of uttering, and two of possession of dangerous drugs. 
[5]	The transcript of those proceedings indicated that she appeared before the Magistrate represented, I assume, by a duty lawyer and pleaded guilty to all charges. She was placed on a recognisance in the sum of $750 pursuant to section 19(1)(b) of the Penalties and Sentences Act 1992 (Qld) for a period of 12 months. As a matter of law, no convictions were recorded.
[6]	The respondent has not engaged in the disciplinary proceedings. Her last contact was an attendance at a compulsory conference. I am satisfied that she has been properly served with the application and has been notified of today’s hearing. Her name has been called and she has not appeared.
The Nature of the Proceedings
[7]	The respondent is no longer registered as a health practitioner; nevertheless, the Tribunal can deal with the application “as if the person was still a registered practitioner”. The applicant alleges that in respect of all the allegations and the application, either read as a whole or separately, if proved, constitutes “professional misconduct” as defined in section 5 of the Health Practitioner Regulation National Law (Qld) (the National Law). The applicant has the responsibility of proving that the respondent has engaged in professional misconduct to the standard set out in Briginshaw v Briginshaw. 
The Relevant Conduct 
[8]	The relevant conduct is set out as an annexure to the application, which was served on the respondent. She has never disputed any of the conduct, some of which is encapsulated in the charges to which she pleaded guilty. At the time of the relevant conduct, she was employed on a casual basis as a registered nurse at the Gold Coast Private Hospital. 
[9]	On 30 December 2019, she stole a blank prescription, the property of Dr Liqun Yang, from the Gold Coast Private Hospital. She crossed out the doctor’s printed details, and wrote in the details of Dr Nigel “Woodale” (she misspelt his name). Both doctors have provided affidavits that they did not authorise anyone to deal with the prescriptions in this way. The respondent handwrote the prescription in the name of Neal McNeal for Oxycodone and had it dispensed on the same day at a drive through chemist on the Gold Coast.
[10]	On or about the same date, she stole another prescription in the name of Dr Lachlin Brown and, again, altered the details in her own writing, crossing out Dr Brown’s details and writing in Dr Nigel Woodall’s details, again misspelling his name, and forged the prescription in the name of Bentley McNeil for Oxycodone which she then had dispensed from the same drive through pharmacy.
[11]	None of this conduct described above has, in any way, ever been contested by the respondent.
[12]	On or about the same date, she stole a prescription from the prescription pad of Dr Brown at the Gold Coast Private Hospital. She forged the prescription by crossing out the printed details of the doctor and inserting the details of Dr Woodall, whose name she again misspelled and filled out the prescription in her own name for Oxycodone and Fentanyl and on 31 December 2020, which she later caused to be  dispensed at a pharmacy at the Gold Coast.
[13]	The conduct the subject of the criminal charges occurred in strikingly similar circumstances to the conduct described above which constitutes allegations two and three in the application.
[14]	The relevant forged prescription relating to the criminal proceedings is annexed to the affidavit of Dr Woodall filed in these proceedings. Again, the printed details of Dr Brown have been crossed out and the prescription has been written out in handwriting in Dr Woodall’s name. This was the prescription written out in her name and was for five 12.5 milligram Fen patches (Fentanyl) and 150 mils of Oxycodone.
[15]	The prescription has a handwritten date of 31 December 2019. It is the respondent’s conduct in relation to that prescription that forms the basis of the criminal charges to which she pleaded guilty.
[16]	In his written submissions, the applicant, through its counsel Mr Price, raises the issue of proof of identity of the respondent as being the person who stole, forged and uttered prescriptions referred to in allegations two and three in circumstances in which she has not engaged in these proceedings and has not directly admitted the relevant conduct.
[17]	I am satisfied to the relevant standard that the applicant has proved that the respondent did engage in the conduct referred to in allegations two and three for the purposes of obtaining Oxycodone for herself. My reasons for so concluding can be summarised as follows:
(a)	In the proceedings before the Magistrate (the subject of allegation one), the respondent was present and legally represented when the prosecution read out the facts to the Magistrate, which (in summary) were:
(i)	She presented at the TerryWhite Pacific Pines Pharmacy at 11.15 am on 2 January 2020 with a prescription in her name for five Fentanyl patches and 150 mils of Oxycodone liquid;
(ii)	The prescription was printed in the name of Dr Brown, but his name had been crossed out and Dr Woodall’s name written in and the prescription was handwritten;
(iii)	It was made out to the respondent with an address of 56 Galapagos Way, Paradise Pines;
(iv)	The script was dispensed and paid for by the respondent who collected the drugs;
(v)	As a result of concerns about the authenticity of the script from the owner of the pharmacy raised the following day, the police were called. The police reviewed CCTV footage of the 11.15 am transaction, which shows clearly the face of the female patient admitted to be the respondent;
(vi)	After ascertaining that neither Dr Brown or Dr Woodall knew anything about the prescription or the patient and that the prescription was from a pad kept by Dr Brown for his use at the Gold Coast Private Hospital, police went to the respondent’s home address at Paradise Pines;
(vii)	She was identified as the person in the footage. She was wearing two of the Fentanyl patches, and police seized the remaining three, and an empty bottle of Oxycodone which was for a different volume and the respondent accompanied them to the police station. She made full admissions to stealing the script from the Gold Coast Private Hospital where she worked as a registered nurse. She admitted to filling out the prescription in her own handwriting and obtaining the drugs. She explained that she suffered from chronic uterine pain following a traumatic birth two years earlier.
(b)	The admitted conduct the subject of allegation one is strikingly similar to the conduct alleged in allegations two and three. The same modus operandi has been used in each case. That is a prescription has been stolen from the prescription pad of a specialist working at the Gold Coast Private Hospital where she also worked and forged by completing the details in handwriting. 
(c)	An examination of the handwriting in each of the three scripts strongly suggests that all three have been completed by the same person, even in the absence of expert evidence to that effect. Dr Woodall’s name has been misspelt in all three documents. 
(d)	The same provider number 2390088 has been inserted on two of the scripts and that is Dr Woodall’s provider number but the remaining script to Neal McNeal, the subject of one of the other allegations, is very close to Dr Brown’s. That is, she has written 2390085. In each case the prescription is for controlled drugs, Fentanyl, Endone, Oxycodone, for a patient with the surname McNeal, or at the address of 56 Galapagos Way, Pacific Pines. None of the doctors authorised the use of the prescription in that way and neither Dr Brown nor Dr Woodall knows any of the patients written in the forms. 
(e)	The recorded message from a person purporting to be Rachel McNeal, which is annexed to the affidavit of a pharmacist who works at the pharmacy which dispensed the schedule 8 drugs to her on 2 January 2020, is suggestive of: 
(i)	a person with advanced knowledge of severe pain medications.
(ii)	her need for them; and 
(iii)	a purported conversation with Dr “Woodale” (sic) who she describes as a “pain guru”; which I infer, did not occur having regard to Dr Woodall’s affidavit: “I have no knowledge of a person named Rachel McNeal.”
[18]	The evidence is strongly probative, and proof that it was the same person, that is, the respondent, who engaged in all the unlawful conduct on each of the three occasions, the subject of the allegations in the disciplinary referral. Any suggestion of coincidence would be fanciful. The strikingly similar conduct undertaken is in a short timeframe and strongly suggestive of a course of conduct with the same motive; that is to unlawfully obtain controlled drugs for her own use.
Characterisation
[19]	All three proved allegations taken separately or as a whole clearly come within the definition of “professional misconduct” as defined in (a) and (b) in the definition of section 5 of the National Law.
[20]	In addition, at all relevant times the respondent was subject to the Codes and standards promulgated by the Board as to what constitutes appropriate professional conduct or practice for the health profession. 
[21]	The relevant Code of conduct for nurses is contained in the hearing brief. Pursuant to section 41 of the National Law, that Code is admissible in proceedings of this nature. Clearly, by stealing, forging and uttering prescriptions obtained in the course of employment, to obtain controlled drugs for her own use, breaches many of the provisions of that Code.
Sanction
[22]	These proceedings are protective in nature and not punitive. The primary focus of any order by way of disciplinary sanction for professional misconduct by a healthcare provider is the health and safety of the public.
[23]	Because she has failed to engage in these proceedings, it is difficult for the Tribunal to make any realistic assessment about issues such as insight and/or steps taken by her to address the underlying causes of her misconduct. Her reasons for offending can be ascertained to a limited extent by what her lawyer told the Magistrate. She has no prior disciplinary or criminal history, and it appears from a report from her then treating GP, that at the relevant time, she was on a program of staged supply of Oxycodone monitored by the doctor, which was as a result of a request from her “in June 2019”.
[24]	This does suggest some limited insight, but the Tribunal cannot go any further in the absence of any further evidence. Given that she is no longer registered, and in light of the quite reasonable orders sought by the applicant, which the Tribunal intends to make, if she does apply to be registered, she will have to satisfy the Board that she does not represent a danger to herself or the public. 
[25]	In many ways it is quite a sad case, but it is very serious for a registered health practitioner to engage in dishonest behaviour to obtain controlled drugs for her own use, whatever the reason, as the cases referred to by Mr Price in his submission clearly indicate.
[26]	As noted earlier, the respondent did not renew her registration on 1 July 2021. Prior to that, she was under significant restrictions in relation to her right to have access to controlled drugs; and insofar as the evidence discloses, she has not worked as a registered nurse since the police charged her in early 2020. The orders sought by the applicant are balanced, fair and appropriate in all the circumstances.
[27]	The orders of the Tribunal are as follows:
1.	Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.
3.	Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013, the respondent is disqualified from applying for registration for a period of 12 months.
4.	Each party to the proceedings is to bear that party’s own costs for the proceeding.