Background facts

Ms Ross was employed as a registered nurse (RN) on a casual basis by Justice Health and Forensic Mental Health Network (JH) at the Goulbourn Correctional Centre (GCC). On 11 June 2015, JH notified the Australian Health and Practitioner Regulation Agency (AHPRA) that JH had been informed by Corrective Services NSW that:

  1. Ms Ross was under investigation in relation to alleged trafficking of mobile phones and Schedule 8 medication in GCC;
  2. Corrective Services had searched the cells of Ms Ross' patients and located multiple mobile phones, Schedule 8 medication and other unidentified pills; and
  3. Ms Ross had been arrested on 11 June 2015.

On 22 June 2015, the Nursing and Midwifery Council of NSW held a hearing against Ms Ross under s 150 of the National Law. During the hearing Ms Ross denied the allegations, claimed she had never smuggled goods into GCC and claimed the safety of her family and herself had been threatened by family members of an inmate when she refused to comply with their demands. Ms Ross stated that after months of threats from the family members of an inmate she provided the relevant inmate, Inmate A, with empty boxes of medication. Ms Ross claimed she was not responsible for antibiotics and mobile phones being located in the cells of her patients and further, that goods which were seized from her home during a police raid were 'odds and ends' that were left in her scrubs after a busy shift. Ms Ross was ultimately suspended from practice after the hearing on 22 June 2015.

Conviction and arrest

On 11 July 2015, Ms Ross was arrested and participated an interview in which she admitted to meeting with Inmate A on 3 June 2015 and providing him with empty prescription boxes. Ms Ross refused to comment when asked about her contact with Inmate A by telephone.

On 26 February 2016, Ms Ross plead guilty to and was convicted on:

  1. a charge pursuant to s 27E(2)(b) of the Summary Offences Act 1988 (NSW), namely that she brought Flucloxacillin into a place of detention without lawful authority on 3 June 2015; and
  2. and five charges pursuant to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA), including:
  3. that shed had in her possession on 3 June 2015 a prescribed restricted substance, Flucloxacillin; and
  4. that she had in her possession on 11 June 2015 prescribed restricted substances, Clonazepam, Ondansetron, Trimethoprim and Gentamicin (four charges)

Ms Ross was sentenced to seven months imprisonment for the conviction under the Summary Offences Act, to be served by way of intensive correction in the community and ordered to pay a fine of $300.00 in respect of each of the charges under the PTGA.

Complaint

On 21 December 2018, the HCCC lodged the complaint in these proceedings under s 145C(1)(a) of the National Law. There were four separate complaints, which were:

  1. Ms Ross was convicted of criminal offences within the meaning of s 144 of the National Law (Complaint 1);
  2. Ms Ross is guilty of unsatisfactory professional conduct as defined in s 139(1)(b) of the National Law and, in contravention of s 130 of the National Law, Ms Ross failed to notify the Nursing and Midwifery Board of Australia that she had been charged with an offence punishable by 12 months imprisonment or more (Complaint 2);
  3. Ms Ross is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National law in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing (Complaint 3);
  4. Complaint 3 consisted of seven particulars, all relating to unprofessional contact with Inmate A and providing Inmate A with empty pill boxes and contraband mobile phones.
  5. Ms Ross is guilty of professional misconduct under s 139E of the National law in that she (Complaint 4):
  6. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, being Complaint 3; or
  7. engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration, being Complaints 3, together with Complaints 1 and 2.

Tribunal proceedings

There was no appearance by, or on behalf of Ms Ross, at either of the directions hearings in February and March 2019. An order for substituted service was made and the matter proceeded as an undefended matter on 18 June 2019. Ms Ross did not appear at the hearing.

On 21 June 2019, three days after the hearing where the decision was reserved, the HCCC forwarded the Tribunal and email received from Ms Ross on Wednesday 19 June 2019. Significantly, the email came from an email address identified in the orders for substituted service. Ms Ross confirmed in the email that she did not wish to attend or respond to any proceedings.

Findings

In regards to Complaint 1, the Tribunal found that the complaint was established based on the Certificate of Conviction which confirmed Ms Ross was convicted of five offence on 26 February 2016.

The Tribunal then found that Complaint 2 had been established, finding Ms Ross was guilty of unsatisfactory professional conduct within the meaning of s 139(1)(b) when she failed to notify the Nursing and Midwifery Board of Australia within 14 days that she had been arrested and charged with an offence on 11 July 2015.

Six of the particulars of Complaint 3 all relied on Ms Ross having contravened JH's Code of Conduct 2006; contact and acceptable communication with inmates and their families, relationships with inmates during and after their incarceration and dealing with financial matters for inmates. The Tribunal found that particulars 1,2,4,5 and 7 of Complaint 3 were established. The Tribunal stated that Ms Ross' conduct was 'contrary to her obligations a an employee of JH providing nursing services in GCC as set out in the Code of Conduct…and was improper and unethical conduct so as to be unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law.'

Finally, the Tribunal found in relation to Complaint 4, which was founded on Complaints 1, 2 and 3, that 'the conduct of Ms Ross as found in relation to Complaint 3 is such a departure from expected behaviour of health professional staff in correctional centre as to justify suspension or cancellation of her registration.' The Tribunal found that conduct found in Complaint 3, when considered together with Ms Ross' criminal convictions relied upon in Complaint 1, amounted to professional misconduct as defined in s 139E of the National Law.

Orders

The Tribunal ordered that:

  1. the complaints of unsatisfactory professional conduct and professional misconduct are proved;
  2. Ms Ross is reprimanded;
  3. Ms Ross' registration as a nurse is cancelled from the date of the decision;
  4. Ms Ross is not to make any application for review of the cancellation of her registration for a period of 12 months from the date of the decision;
  5. Ms Ross is to pay the costs of the HCCC in the amount of $13,635.77.

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