QCAT finds nurse guilty of professional misconduct after criminal convictions

This 2024 decision from the Queensland Civil and Administrative Tribunal (QCAT) reminds health practitioners of the need to maintain standards of conduct even when outside of the workplace. In Nursing and Midwifery Board of Australia v LYS [2024] QCAT 209, a nurse’s conviction on several criminal charges unrelated to work led to a finding of professional misconduct and a reprimand against her.

Facts of the criminal offending

The health practitioner in question (LYS) was an “exemplary” nurse who worked in the high-stress area of mental health. The relationship between LYS and her domestic partner had broken down in around April 2020, and she was subsequently subjected to “conduct that meets the description of family violence”. Her former partner’s conduct involved psychological, emotional, verbal, financial and other non-physical forms of abuse.

Against this background and while intoxicated, in April 2021, LYS drove to her ex-partner’s residence, let herself into the property by removing a window screen and entered his bedroom. A verbal dispute ensued, which escalated when LYS grabbed a knife and threatened him with words to the effect that [she] “will fucking stab you”.

LYS was convicted in the Magistrates Court of Queensland on her pleas of guilty of the following criminal charges:

• driving under the influence of liquor;
• enter dwelling without consent of owner or person in lawful occupation;
• common assault (Domestic Violence Offence); and
• wilful damage (Domestic Violence Offence).

She was fined $800, disqualified from driving for seven months and sentenced to nine months’ probation. No conviction was recorded.

Failure to report criminal charges – Ahpra obligations

The Nursing and Midwifery Board (Board) sought two findings against LYS for professional misconduct due to:

• those criminal convictions; and
• her failure to report the criminal charges and convictions to the Board, as is required by section 130 of the National Law.

You can read more about these reporting requirements in our earlier blog, “Health practitioners’ obligations to notify Ahpra of criminal charges”.

QCAT decision

QCAT addressed three key issues in the hearing:

1. Did the criminal conduct constitute professional misconduct?

QCAT held that it did.

2. Did the failure to report criminal charges (and convictions) constitute professional misconduct?

QCAT held that it didn’t. Rather, it constituted unprofessional conduct.

3. Based on the above decisions, what sanction should be imposed?

QCAT imposed a reprimand on the practitioner.

Takeaways for health practitioners

This case is a good reminder that private conduct may still constitute professional misconduct. In making the finding that the criminal conduct was professional misconduct, QCAT had regard to Health Care Complaints Commission v Haasbrook [2018] NSWCATOD 177, in which it was observed:

“…practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour. General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary.”

Describing LYS’ offending, QCAT found that it was “serious” and amounted to a “substantial” departure from the standards of behaviour that are expected of health professionals. Thus, a finding of professional misconduct was warranted:

“On any objective analysis, the conduct founding the convictions should be viewed as serious … The degree of departure can only be seen as substantial.”

QCAT also labelled the failure to report criminal charges as “serious” but acknowledged that LYS’s failure to report was not deceitful and came amid “very difficult personal circumstances”. Thus, she avoided a second finding of professional misconduct.

More generally, it appears that LYS’s conduct would have attracted more serious sanctions if there were not so many mitigating factors. For example, QCAT accepted that she:

• was an “exemplary” nurse;
• was well educated, undertakes academic, research and teaching work at universities;
• was “highly regarded professionally”;
• performed work to a “very high standard”;
• displayed a “caring, compassionate and appropriate” approach to patients;
• had no prior disciplinary transgressions;
• was affected by alcohol but did not have an alcohol problem;
• had been excluded from the property she had invested in with her former partner; and
• was subject to various forms of coercive control and domestic violence.

Though not explaining her conduct, these circumstances:

“provide light and shade to the conduct constituting the offences; they reinforce the contention that the conduct is out of character; and they serve as a point of distinction from conduct (and offences) in other cases where those circumstances were not present”

Get help from a health lawyer

LYS was recognised to be an exemplary professional in the midst of an exceedingly difficult time and was nevertheless the subject of serious findings and a sanction. The Tribunal noted that a reprimand is on the public record and has significant consequences for the reputation of the practitioner.

The decision is a reminder for health practitioners of the necessity of maintaining acceptable standards of conduct outside of the workplace and of reporting any criminal charges and convictions to the professional body, even amid difficult personal circumstances.

If you are facing investigations into your private or practice-related conduct as a health practitioner, it is vital that you seek early assistance from your union or a lawyer experienced in professional conduct and registration law.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

Find this article helpful or interesting?

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• How to deal with Ahpra complaints or notifications as a health professional