QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v Self [2022] QCAT 132	
PARTIES:	Health Ombudsman	

(applicant)	

	v	
	Charlie Leigh self	

(respondent)	

APPLICATION NO/S:	OCR084-21	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	16 March 2022 (ex tempore)	
HEARING DATE:	16 March 2022	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member J Robertson
Assisted by:
Ms Laura Dyer
Mr Stephen Lewis
Ms Margaret Ridley	
ORDERS:	1.	Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3.	Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for twelve months. 
4.	Each party to the proceeding is to bear the party’s own costs for the proceeding. 	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – ENROLLED NURSE – where respondent stole prescription pads from her medical practitioner employer – where she then forged prescriptions and obtained controlled drugs and/or attempted to obtain such drugs for her own use – where respondent no longer registered – where respondent has not engaged in these proceedings – where substituted service order made by the Tribunal – whether conduct constitutes professional misconduct – what sanction should be imposed
Health Ombudsman Act 2013 (Qld) s 107 
Health Practitioner Regulation National Law (Queensland) (National Law) s 5
Briginshaw v Briginshaw (1938) 60 CLR 336
Ex parte Tziniolos; Re. Medical Practitioners Act (1966) 67 SR (NSW) 448 
Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v Field [2019] QCAT 243
Health Ombudsman v Mullins [2019] QCAT 339
Health Ombudsman v Shemer [2019] QCAT 53
Health Ombudsman v Wrede [2019] QCAT 356
McBride v Walton [1994] NSWCA 1999
Medical Board of Australia v Blomeley [2018] QCAT 163
Nursing and Midwifery Board of Australia v Sanger (review and Regulation) (Corrected) [2020] VCAT 201	
APPEARANCES & REPRESENTATION:	

Applicant:	
M Price, Legal Officer at the Office of the Health Ombudsman 	

Respondent:	
No Appearance 	

REASONS FOR DECISION
[1]	On 29 March 2021, the applicant referred a health service complaint to the Tribunal. The applicant alleges that the respondent has behaved in a manner that constitutes professional misconduct, alternatively unprofessional conduct.  
[2]	The referral relates to the respondent’s conviction, on her own pleas of guilty, on 18 November 2020 in the Beenleigh Magistrates Court to six criminal charges, three of stealing, two of fraud and one of attempted fraud.
[3]	The offending occurred during the period 1 May 2019 and 24 April 2020 and is summarised appropriately in Mr Price’s (Counsel for the applicant) submission in the following way: 
(a)	between 1 May 2019 and 24 April 2020, and while employed as a nurse at the Wynnum Medical Centre at Tingalpa, the respondent stole an unknown number of blank prescriptions belonging to a doctor at the surgery. Then, on at least 14 different occasions, in order to dishonestly obtain prescription medication, she attended at 14 different pharmacies and presented one of the stolen scripts, each one now handwritten and purporting to prescribe oxycodone five milligrams or diazepam five milligrams. Those drugs were dispensed to her.
(b)	when employed at the Albany Creek Dental Practice at Albany Creek, she stole one blank prescription. On 7 April 2020, she presented the stolen script to Mega Pharmacy at Browns Plains, now handwritten and purporting to prescribe oxycodone. However, this drug was not dispensed to her.
(c)	When employed at the Merthyr Seven Day Medical Centre at New Farm, the respondent stole one blank prescription. On 31 March 2020, she presented the stolen script, now handwritten and purporting to prescribe oxycodone to the Priceline Park Pharmacy and obtained that drug.
[4]	The respondent has not engaged in these proceedings. The applicant had difficulties in affecting service upon her. Ultimately, on 16 July 2021, the Tribunal, constituted by His Honour Judge Allen QC, ordered that service be affected by way of substituted service by forwarding the documents to 58 – 60 Alluring Court Jimboomba Queensland.
[5]	In January of this year, all evidence and submissions to be relied upon by the applicant, as filed in the Tribunal, were forwarded to the respondent at that address. Those documents were returned to Mr Price’s office as unclaimed and stating that the respondent was no longer at that address. However, the evidence filed this morning, in particular, I refer to the affidavit of Dean Andrew Sawyer sworn 16th July 2021 and filed on 15 March 2022 proves that the referral ultimately was served on her husband. 
[6]	It is clear from exhibit 1, the email trail, that the respondent is well aware that these proceedings are listed for this morning. Her responses to the Office of the Health Ombudsman and Mr Price and the Tribunal indicate, in my view, what was already apparent, and that is that she has no interest in engaging in these disciplinary proceedings.
[7]	This morning, despite being forwarded the link, she did not appear. Her name was called, both in her name set out in the proceedings and in a name that she was using when she was dealt with in the Magistrates Court for unrelated offences, and she has not appeared.
Background and Regulatory History
[8]	The respondent was born on 26 April 1981. She is now 41 years old. She was 39 years old when convicted of the criminal offences, the subject of the referral, and 38 at the time of committing those offences.
[9]	She obtained a Diploma of Nursing from the Southbank Institute of Technology in 2011. On 9 January 2012, she was registered as an enrolled nurse (division 2). She was employed as the nurse at the Wynnum Medical Centre at Tingalpa at the time of stealing the various scripts the subject of charges 1 and 2 (between 1 May 2019 and 24 April 2020); employed at the Albany Creek Dental Practice at Albany Creek at the time of stealing the script, the subject of charges 3 and 4 (between 1 January 2020 and 24 April 2020), and employed at the Merthyr Seven Day Medical Centre in New Farm at the time of stealing the script the subject of charges 5 and 6 (between 7 June 2019 and 22 April 2020).
[10]	On 19 September 2019, the Nursing and Midwifery Board of Australia (the Board) suspended the respondent’s registration. That suspension was revoked approximately 10 months later, on 30 July 2020.
[11]	The respondent did not renew her registration for the 2020/2021 renewal period and she provided written advice to the Board that she did not intend to renew her registration. This meant, upon the revocation of her suspension on 30 July 2020, the respondent was removed from the public register in accordance with her advice that she was not renewing her registration. On 18 November 2020, the respondent was convicted of the offences, the subject of the referral, and she was sentenced to probation for a period of 18 months.
[12]	The respondent has criminal convictions for offences other than those which are the subject of the present referral. On 11 February 2020, she was convicted on two charges of assaulting police (both offences occurred on 19 May 2019). She was fined $500, to be paid within 28 days, and convictions were not recorded.
[13]	 It follows that she is no longer registered as an enrolled nurse. Her registration lapsed on 31 July 2020, upon the Board lifting her suspension on 30 July 2020.
[14]	As can be seen from the verdict and judgment record in respect of the dishonesty offences, she was dealt with under the name Charlie Leigh Ash. There is evidence in the Tribunal hearing brief of her conviction of the two offences of assaulting a police officer, which are not the subject of this referral, in which she is described as “Charlie Leigh Ash AKA Charlie Self.” 
[15]	The Tribunal is satisfied that the respondent’s name is correctly described in the referral, and in the evidentiary certificate from Ahpra and the Board.
The Relevant Conduct
[16]	The applicant has the onus of proving the relevant conduct given that the respondent has not taken part in these disciplinary proceedings and has failed to put on any evidence or cooperate in any way, and that it constitutes either professional misconduct or unprofessional conduct. The standard of proof is the civil standard, governed by the sliding scale of satisfaction explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J (as the Chief Justice then was). The Tribunal is not bound by the rules of evidence other than to the extent the Tribunal adopts them. The Tribunal may inform itself in any way it considers appropriate.  
[17]	Here, the allegations are serious. The consequences flowing from a finding that the respondent has behaved in a way that constitutes professional misconduct are grave. To quote his Honour, “In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[18]	As the respondent has not engaged in proceedings, the statement of facts filed by the applicant is uncontested. The statement of facts regarding the relevant conduct is completely consistent with the transcript of the proceedings before the Beenleigh Magistrates Court on 18 November 2020, at which time the respondent was represented by a lawyer. At that time, she pleaded guilty. Her pleas of guilty and her lawyer’s acceptance of those facts constitute part of the proof of the facts set out in allegation 1 in the referral.
[19]	I am satisfied that the conduct, the subject of the referral, satisfies all three limbs of the definition of “professional misconduct” in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). As regards limbs (a) and (b), her conduct was clearly substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Her conduct also contravenes a number of essential provisions of the Nursing and Midwifery Board of Australia’s Code of Conduct for nurses (the Code) relating to not engaging in unlawful behaviour as a nurse, and embodying, in their conduct, “integrity, honesty (and) respect.”
[20]	The relevant features of the respondent’s conduct demonstrating it being substantially below the expected standard, include the serious nature of the criminal conduct, which involved protracted conduct involving three different employers whose trust she breached by stealing from them. She repeatedly used the opportunity afforded her by her position as a registered enrolled nurse at the various surgeries to steal blank prescriptions.
[21]	It was clearly a deliberate course of conduct involving at least 19 distinct episodes of dishonesty over a significant period of time. It clearly involved some planning and calculation, given that it involved stealing prescriptions from three different medical and/or dental practices, forging of prescriptions which involved endorsing the prescription with her own name or those of others, and forging the signature of a doctor who purportedly issued the prescription, and attending at various pharmacies, and on a number of occasions using the forged prescriptions to obtain medication.
[22]	Health Ombudsman v Antley [2016] QCAT 472 is a relevant comparable case. In that case, the respondent was a registered nurse who was convicted of one count of stealing and one count of fraud. Those charges related to her stealing a script pad, forging two prescriptions and presenting them at three different pharmacies. She used the two scripts to obtain endone, a drug of dependence. As is the case here, the respondent’s explanation for her conduct in that case was that she was taking the drugs to self-medicate to manage severe pain from a diagnosed condition. The respondent in that case suffered from mental health conditions, including bipolar disorder and her condition was said to be deteriorating.
[23]	In Antley, the Tribunal stated (at [44]):
Nurses must know that the almost certain consequences of such conduct include not only loss of registration for a significant period, but disgrace through the recording of their misconduct on the public register and that they may never practice again, unless they can persuade the accreditation authority that they will not relapse into the conduct.
[24]	The respondent’s conduct was inconsistent with the practitioner being a fit and proper person to hold registration in the profession under limb (c) of the definition of professional misconduct in section 5 of the National Law. In particular, by reference to the factors that are relevant to this issue as discussed in McBride v Walton [1994] NSWCA 1999 at page 34, her dishonest conduct was protracted and could not be characterised as a mere error of judgment. Her dishonest behaviour was directly connected with the practice of her profession. Rather than respecting the proper process for obtaining prescription medication, she used her position to subvert it. Her conduct is apt to undermine public confidence in the profession, which sits at the very heart of the healthcare system in this country.
Sanction
[25]	As stated by the Tribunal in Health Ombudsman v Shemer [2019] QCAT 53 at paragraph [11] by reference to Medical Board of Australia v Blomeley [2018] QCAT 163 at [142] to [143], considerations relevant to the imposition of sanction include the principle that the jurisdiction is essentially protective not punitive; the paramountcy of the health and safety of the public; personal and general deterrence, and the maintenance of professional standards and the maintenance of public confidence in the nursing profession; an assessment of ongoing risk posed by the practitioner, including an assessment of the degree to which the practitioner has developed insight into her conduct; evidence of rehabilitation and other matters that may be regarded as aggravating or mitigating circumstances in a particular case.
[26]	The respondent is no longer registered. Therefore, certain orders such as suspension or cancellation of her registration are not available to the Tribunal. In this case, the applicant submits, amongst other orders, that the respondent be disqualified from applying for registration for a period of 12 months.
[27]	The seriousness of her conduct is characterised above. The fact that the respondent has not engaged in this proceeding makes it extremely difficult to assess her level of insight into her conduct or remorse for it. Indeed, as the report of Dr Nigel Power dated 18 October 2019, prepared for Ahpra indicates, she was opiate-dependent (at least when he saw her on 1 October 2019), and the reference in his report to other professional reports to the effect that she presents with a pattern of drug-seeking behaviour, escalating doses, seeking multiple drugs from multiple doctors, suggests (at least at that time) little insight into her drug dependency.
[28]	It is also difficult to assess the need for specific deterrence in this case, given the respondent’s failure to engage in the disciplinary process. Her offending was said to be in the context of her suffering from chronic pain, but there is no evidence that the situation has changed, whether through surgery or other medical intervention. There is no evidence of rehabilitation or reformation of character. In those circumstances, any sanction imposed should serve to deter the respondent from repeating her conduct. Any sanction should be sufficient to deter other practitioners from engaging in similar conduct.
[29]	It is difficult, for these reasons, to assess what ongoing risk the respondent now presents, given her failure to engage in these proceedings. In Ex parte Tziniolos; Re. Medical Practitioners Act (1966) 67 SR (NSW) 448 at [461]; quoted with approval in Health Ombudsman v Field [2019] QCAT 243 at [49], the relevant Tribunal stated:
Reformations of character and behaviour can doubtless occur, but their occurrence is not usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it has not been proved that anything of a discreditable kind has occurred. If a [person] has exhibited seriousness deficiency in [his or her] standards of conduct and [his or her] attitudes, it must require clear proof to show that some years later [he or she] has established [himself or herself] as a different [man or woman].
[30]	The respondent has failed to engage in the disciplinary proceeding in any significant way. In Field, the Tribunal said of that practitioner at [51]:
…His unwillingness to engage in the referral process demonstrates a lack of understanding of the responsibility of professionals and the role played by professional bodies in upholding the standards of a profession.
[31]	The decisions of Health Ombudsman v Antley, Nursing and Midwifery Board of Australia v Sanger, Health Ombudsman v Wrede and Health Ombudsman v Mullins suggest, as submitted by Mr Price on behalf of the applicant, a disqualification period of between 12 months to three years, depending on the circumstances.
[32]	Given the serious and protracted nature of the respondent’s offending, the relative lack of evidence of her remorse and insight due in part to her failure to engage in these proceedings, and the consequent difficulties in assessing the risk she presents to the health and safety of the public, the Tribunal is satisfied that she should be disqualified from applying for registration for a period of 12 months. Such a sanction would adequately address both personal and general deterrence as well as the maintenance of professional standards and the maintenance of public confidence. 
[33]	The applicant also seeks that the respondent be reprimanded, which is appropriate in the circumstances of the case. A reprimand is not a trivial penalty and marks the denunciation of the conduct in a public way.
Orders 
[34]	The default position under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) should apply with each party to the proceeding to bear its own costs for the proceeding. The Tribunal makes the following decisions and orders:
1.	Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides 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; and
4.	Each party to the proceeding is to bear the party’s own costs for the proceeding.