A registered nurse was found to have engaged in professional misconduct under section 5 of the Health Practitioner Regulation National Law (Qld) ('National Law') for stealing Fentanyl on a number of occasions.
Background
The respondent was a registered nurse and misappropriated Schedule 8 and Schedule 4 drugs. The respondent disputed one of the seven charges, however did not contest a finding of professional misconduct within the meaning of section 5 of the National Law. The respondent had a history of previous notifications and dealings with the Australian Health Practitioner Regulation Agency ('AHPRA').
On 8 January 2014, the respondent's employer notified AHPRA when they stood the respondent down awaiting investigations in relation to the respondent's use of medications. On 29 January 2014, AHPRA was again notified that the respondent was on leave with pay for inappropriate conduct in relation to schedule 8 drugs. The respondent had admitted to using schedule 8 drugs for personal use.
On 18 February 2014, AHPRA was notified by the respondent's employer that an ampoule of Fentanyl was found in the respondent's work locker. The Queensland Notifications Committee of the Nursing and Midwifery Board of Australia ('the Committee') required that the respondent undertake a health assessment in relation to the notifications.
On 30 April 2014, the respondent plead guilty to stealing five 500 microgram ampules of Fentanyl on 29 December 2013. The respondent was ordered to pay a fine of $1,500 and a conviction was not recorded.
On 2 May 2014, the respondent attended a health assessment with a psychiatrist, who diagnosed her with substance abuse disorder (namely Fentanyl). On that basis, the Committee decided that the respondent had an impairment and imposed conditions on the respondent's registration, including prohibition of handling schedule 8 drugs and opioids. The respondent was also required to participate in urine drug screening and provide a specimen of hair for drug analysis.
Conduct
The conduct alleged by the applicant was particularised into seven charges as follows:
- misappropriation of schedule 8 medication;
- accessing schedule 8 drug safe without authority;
- misappropriation of schedule 4 medication;
- criminal conviction: stealing as a servant (Fentanyl);
- placing a patient at risk of harm;
- contravention of condition; and
- contravention of National Law: failure to notify the Board of a relevant event.
The applicant alleged that the respondent engaged in professional misconduct or alternatively unprofessional conduct with respect to charges 1, 3, 4 and 5. The applicant then alleged that the respondent engaged in unprofessional conduct with respect to charges 2, 6 and 7. The respondent didn't dispute the facts or characterisation of her conduct except for denying an aspect of charge 4 and denied charge 5.\
With respect to charge 4, the respondent was convicted on a plea of guilty for two indictable offences for stealing as a clerk or servant. The respondent had borrowed the access card of another registered nurse to access the drug safe and remove one box of 500 microgram ampoules of Fentanyl. The matter was referred to the Queensland Police Service and the respondent ceased working.
When working in a day surgery, the respondent took a 3 ml syringe of Fentanyl from an Anaesthetist's table in an unattended operating theatre. The respondent had replaced the syringe with clear fluid. The matter was referred to the Queensland Police Service and her employment was subsequently terminated.
The respondent denied stealing Fentanyl on both occasions however was charged on 29 January 2015. On 21 August 2015, the respondent plead guilty to two offences of stealing as a clerk. The respondent was placed on 12 months' probation and a conviction was recorded.
In relation to charge 5, the respondent had placed an unknown patient at risk of harm by replacing a syringe of Fentanyl with clear fluid at the day surgery. The respondent denied doing so.
Disputed issue of fact
While the respondent admitted to stealing syringes of Fentanyl from the day surgery, she denied replacing the Fentanyl in the syringe with clear fluid. The Tribunal considered affidavit evidence and testimonies of three witnesses including the respondent's.
During cross-examination, the respondent admitted that she had lied when she previously denied stealing Fentanyl. In her affidavit, she stated that the first time she became aware of the allegation of swapping the Fentanyl for saline was when she received the referral notice. However she was shown the content of a letter from the Office of the Health Ombudsman prior to the notice, which contained the allegation. Whilst this diminished the respondent's credibility, the Tribunal was unable to safely conclude that the respondent was so lacking in credibility that her sworn denials should be disregarded.
Given the significant inconsistencies between the evidence of the witnesses, the Tribunal was unable to conclude on the balance of probabilities that the disputed allegation was made out. Given the gravity of consequences for finding the respondent guilty of placing a patient at significant risk of harm by replacing the syringe with a clear fluid, the Tribunal could not be satisfied by the 'inexact proof, indefinite testimony, or indirect inferences' available from the evidence, that a finding should be made.
Characterisation of conduct
There was no dispute in relation to the other charges of professional misconduct and unprofessional conduct. The Tribunal accepted that the respondent had behaved in a way that constitutes professional misconduct pursuant to s107(2)(b)(iii) of the Health Ombudsman Act 2013 ('HO Act').
Sanction
On 4 March 2015, the applicant took immediate registration action and suspended the respondent's registration. The registration remained suspended and subject to conditions imposed by AHPRA until the Tribunal's orders.
The Tribunal considered the main principle for administering the HO Act, being that the health and safety of the public is paramount. The Tribunal held that the respondent's misconduct was a gross breach of the trust that the public, her employers and colleagues are entitled to expect of her.
The Tribunal held that there is nothing to suggest that the respondent poses any immediate risk by returning to practice therefore no immediate protective purpose would be served by cancelling her registration. The respondent's 4 and a half years of preclusion from the practice, sufficiently addressed considerations of denunciation and personal and general deterrence in relation to this matter. The Tribunal also considered that an order for cancellation of the respondent's registration after 4 and a half years of not practicing would have created insurmountable obstacles for the respondent to return to practice.
Therefore the Tribunal declined to make such orders.
