This case considered whether a practitioner's registration should be cancelled because the practitioner had failed to disclose his charges and convictions to the Nursing and Midwifery Board of Australia.

Background facts

QCAT were referred the disciplinary matters on behalf of the Health Ombudsman Act 2013 (Qld) (HO Act) in February 2018.

Mr Field had been convicted of offences under the Explosives Act 1999 (Qld), Weapons Act 1990 (Qld) and Criminal Code 1899 (Qld). The offences were a result of a domestic dispute between Mr Field and his wife, which ultimately led to Queensland Police Service (QPS) Officers searching his house.

The Health Ombudsman (HO) alleged that Mr Field has engaged in professional misconduct, or in the alternative, unprofessional conduct, as a result of the charges. Mr Field failed to file a response to the referral, submissions or provide sworn evidence.

Over the phone at a directions hearing on 4 May 2018, Mr Field advised the Tribunal that he did not wish to be involved in the proceedings.

The matter proceeded with affidavit evidence filed on behalf of the HO and submissions as to facts and sanction. As Mr Field did not appear at the hearing, it was heard in his absence pursuant to s 93 of the QCAT Act.

Relevant circumstances

Mr Field became a Registered Nurse on 5 December 2002. He was then employed by WBHHS as a Clinical Nurse in the Medical/Surgical and Palliative Care Unit at Maryborough Hospital.

Mr Field's offences arose out of a domestic dispute on the evening of 10 February 2016 at his home. Mr Field admitted to have had 'about 12 beers' whilst out and a few more at home. His wife had also been drinking. A verbal argument between himself and his wife escalated and Mr Field 'stupidly grabbed [his] replica firearm to scare [his wife]'. Mr Field in a statement also said that the replica firearm was 'the one she knew doesn't work.'

QPS arrived at Mr Field's home immediately after his wife had contacted the police. QPS located the replica firearm. Mr Field initially denied having weapons in his home, however later admitted that there were. After the police located ammunition and Mr Field failed to provide reasons for having it in his possession, he was arrested and transported to the Maryborough Watch House. He was charged and remanded in custody for 26 days before being sentenced.

As required by s 130 of the National Law, Mr Field failed to notify the Board that he had been charged and convicted of criminal offences or that his employment was suspended and then subsequently terminated.

WBHHS immediately suspended his employment on full pay when they were made aware of the charges. Mr Field did not adequately respond to the show cause process and was therefore terminated with immediate effect. The HO also provided an opportunity to respond to their decision to suspend his registration. The HO confirmed the suspension of his registration on 18 July 2016.

The HO submitted that Mr Field's conduct amounted to professional misconduct pursuant to s 5 (a) and/or (c) of the National Law. Section 5 (a) and (c) provides

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and …

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

The HO, accepting that the offences occurred in Mr Field's private life, were inconsistent with being a fit and proper person. The Tribunal referred to Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283, 'the conduct is incompatible with the characteristics, attributes, and ethical standards required in such profession.'

The failures to notify was also treated as an aggravation to the totality of the conduct. The totality of the conduct clearly fell into the definition of 'professional misconduct'.

Sanction

The HO referred to President Kirby's 'factors to consider' when determining fitness and proprietary in McBride v Walton [1994] NSWCA 199:

'(a) Whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) The intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;

(d) The motivation which may have given rise to the proven episode of misconduct;

(e) The underlying qualities of character shown by previous and other conduct; and

(f) Whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed to him to uphold and observe the high standards of moral rectitude required of a medical practitioner.'

The Tribunal held:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), Mr Field has behaved in a way that constitutes professional misconduct
  2. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), Mr Field’s registration is cancelled, effective from the date hereof.
  3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), Mr Field is disqualified from applying for registration for a period of one year, from the date hereof.
  4. There be no order as to costs.