Level 13, Mid City Tower, 139-143 Willis Street PO Box 11-649, Wellington, New Zealand Telephone: 64 4 381 6816 Facsimile: 64 4 802 4831 Email:
[email protected] Website: www.hpdt.org.nz
DECISION NO.:
124/Nur07/68P
IN THE MATTER
of the Health Practitioners Competence Assurance Act 2003
AND
IN THE MATTER
of a charge laid by the Professional Conduct Committee pursuant to section 91(1)(b) of the Act against DAN
ERIK
HANSSON,
Registered Nurse of Mt Maunganui
BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL
HEARING held at Wellington on Thursday 16 August 2007
TRIBUNAL:
Mr B A Corkill QC (Chairperson) Ms O Harris, Ms H Irvine, Professor J Kilpatrick and Mr H Midgley (Members) Ms G J Fraser (Executive Officer) Ms R Hauraki (Stenographer)
APPEARANCES:
Ms C Prendergast and Ms H de Montalk for the Professional Conduct Committee
2 Introduction: 1.
Mr Hansson is a registered nurse. He resides in Mt Maunganui.
2.
On 8 May 2007, a Professional Conduct Committee (PCC) appointed by the Nursing Council of New Zealand charged that Mr Hansson had been convicted of an offence under the Misuse of Drugs Act 1975, and that the conviction reflects adversely on his fitness to practise.
3.
The PCC alleged that a disciplinary offence was thus constituted pursuant to section 100(1)(c) of the Health Practitioners Competence Assurance Act 2003 (HPCA Act).
The Charge: 4.
The charge stated: “The Professional Conduct Committee pursuant to section 81(2) of the Act charges that: On 24 October 2006, Mr Hansson was convicted in the Tauranga District Court of one charge of theft of drugs pursuant to section 11(1)(a) of the Misuse of Drugs Act 1975 and that this conviction reflects adversely on his fitness to practise. Particulars of Convictions Between 17 March 2006 and 5 October 2006, Mr Hansson removed approximately 12,000 micrograms of Fentanyl from a drug safe at Tauranga Hospital, signing the drug register with fake names using medical colleague’s details. Mr Hansson admitted stealing the drugs and injecting Fentanyl several times for his own use.”
The Hearing: 5.
Mr Hansson did not attend the hearing. The Tribunal received evidence that: 5.1
Notice of intention to bring disciplinary proceedings before the Tribunal was sent to Mr Hansson on 25 May 2007. This letter was sent by signature required courier to Mr Hansson’s last known address, and was signed for by him on 2 June 2007.
3 5.2
On 21 June 2007, the Executive Officer wrote to Mr Hansson stating that he had not responded to the earlier letter, and described the procedures to be taken by the Tribunal for the purposes of the directions conference call, of which notice had been given. This letter was sent by signature required courier and was signed for by Mr Hansson on 23 June 2007.
5.3
On 27 June 2007, the Executive Officer wrote to Mr Hansson advising him of the date, time and contact details for the directions conference call.
5.4
On 28 June 2007, the Executive Officer telephoned Mr Hansson by cellphone. He answered but stated he was busy. Further attempts were made to speak with him on 10 July 2007.
5.5
On 11 July 2007 the Executive Officer sent by signature required courier a copy of the directions conference minutes that advised the date, time and location of the hearing. The delivery was effected on 14 July 2007, and signed for by Mr Hansson.
5.6
On 3 August 2007, the Executive Officer wrote to Mr Hansson confirming the date, time, venue and composition of the Tribunal for the hearing, by signature required courier. It was signed for by Mr Hansson on 4 August 2007.
5.7
On 6 August 2007, the Executive Officer received an email from Mr Hansson stating he would not be attending the hearing and he would not be represented.
5.8
The PCC also provided evidence of communication with Mr Hansson as to the disciplinary processes, including letters of 25 October 2006, 19 January 2007, 27 April 2007 and 18 July 2007.
The last letter enclosed a bundle of
documents for the purposes of the hearing, including the submissions to be given by the PCC. Delivery was effected on 31 July 2007 and was signed for by Mr Hansson.
4 5.9
On 2 February 2007, Mr Hansson wrote to the Nursing Council of New Zealand informing it that he was serving a one year prison sentence, and asking to be struck off the Nursing Register for an indefinite period. The letter said that he did not dispute the charges brought against him.
6.
Section 156 of the HPCA Act states in the absence of proof to the contrary that notification sent to a person at their last known place of residence is deemed to be delivered if the letter was properly addressed and posted.
7.
Having regard to the content of the various letters referred to above, the Tribunal was satisfied that proper notice of the charge had been given to Mr Hansson, that he had been given a proper opportunity to participate in the preliminary formalities, and that he had been given proper notice of the hearing itself.
Legal Principles: Onus and Standard of Proof 8.
The PCC carries the onus of proof.
9.
New Zealand authorities require the Tribunal to assess the culpability of a health practitioner on the basis of the civil standard of proof, bearing in mind that serious allegations require a high level of proof. In Z v Complaints Assessment Committee and Another (22 March 2007, [2007] NZCA91), the Court concluded after a careful review of all the relevant authorities that the approach set out in Re H [1996] AC 563, at 586, per Lord Nicholls of Birkenhead, in the following passage was the correct approach: “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is
5 usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”
Conduct which Reflects Adversely on a Practitioner’s Practice: 10.
Section 100(1)(c) of the Act provides that a registered health practitioner may be disciplined by the Tribunal where “… the practitioner has been convicted of an offence that reflects adversely on his or her fitness to practise”.
11.
In Pittwood (84/Ost06/42P), there is a careful review of the second limb of the phraseology, “reflects adversely”, which this Tribunal adopts.
12.
In Re Zauka (Decision 236/03/103C, 17 July 2003) the Medical Practitioners Disciplinary Tribunal was required to consider a similar provision – section 109(1)(e) of the Medical Practitioners Act 1995. That Tribunal, guided by observations of the District Court in CAC v CM [1999] DCR 492, stated: “It was not necessary that the proven conduct should conclusively demonstrate that the practitioner is unfit to practise. The conduct will need to be of a kind that is inconsistent with what might be expected from a practitioner who acts in compliance with the standards normally observed by those who are fit to practise medicine. Not every divergence from recognised standards will reflect adversely on a practitioner’s fitness to practise. It is a matter of degree. While conduct will satisfy the requirements of the rider, it cannot be decided solely by analysing the words of the subsection. It is rather, a matter that calls for the exercise of judgment …”
13.
In F v The Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 the Court of Appeal made it clear that the term “reflects adversely on fitness to practise” as it was used in the rider to section 109(1)(c) of the Medical Practitioners Act 1995, raised the threshold as to what constituted a disciplinary offence under section 109(1)(c) of that Act.
Background: 14.
In July 2005 Mr Hansson started working full time as a registered nurse in the Radiology Department at Tauranga Hospital.
6 15.
The Bay of Plenty Health Board was alerted to irregularities in the controlled drug register in the Radiology Department and an internal investigation was commenced.
16.
Between 17 March 2006 and 5 October 2006 it was found that on numerous occasions Mr Hansson had used deceased patients’ details, names of patients who had been discharged and names of patients who were not scheduled for medical procedures in the controlled drug register in order to obtain Fentanyl.
17.
Mr Hansson had forged the signatures of his colleagues when signing the register.
18.
The matter was referred to the Police and Mr Hansson was arrested on 5 October 2006.
19.
Mr Hansson admitted stealing approximately 120 ampoules of Fentanyl for his own use. He admitted to injecting several times a day, using up to 300 micrograms of Fentanyl each time he injected.
20.
It was estimated that no less than 12,000 micrograms of Fentanyl was obtained and used by Mr Hansson over this period.
21.
On 24 October 2006 Mr Hansson appeared in the Tauranga District Court charged with one count of theft of drugs. He entered a guilty plea and was convicted.
22.
He was sentenced on 8 December 2006 by Crosby DCJ to a term of imprisonment of one year with leave given to apply for home detention so that a residual treatment programme would be available to him.
Grounds of Discipline: 23.
It is clear from the certificate of conviction that the conviction alleged in the disciplinary charge is established.
24.
The Tribunal is also well satisfied that the offence for which he has been convicted reflects adversely on his fitness to practise, for the following reasons:
7 24.1
There was a gross breach of trust – a fact which the District Court Judge noted, he stating that in the context of the offending the breach of trust was grave and premeditated.
24.2
It is clear that Mr Hansson was a drug addict, and abused his employment position to obtain the drugs that he stole from the workplace. In doing so he misused colleagues and patients’ names.
24.3
Such conduct is obviously illegal, immoral, unethical and dishonest, and undoubtedly reflects adversely on his fitness to practise.
25.
Accordingly, the Tribunal was satisfied that the ground of discipline under section 100(1)(c) was established.
Penalty: 26.
In determining the appropriate penalty, the Tribunal has borne in mind the following functions of disciplinary proceedings: 26.1
Protecting the public – this object is reinforced by section 3 of the HPCA Act, as mentioned above.
26.2
Maintaining professional standards – this object is emphasised in Taylor v General Medical Council [1990] 2 All ER 263; Ziderman v General Dental Council [1976] 2 All ER 344 and Dentice v The Valuers Registration Board [1992] 1 NZLR 720.
26.3
To punish the practitioner in question, as referred to in Dentice v The Valuers Registration Board.
26.4
To rehabilitate the practitioner, if worthy of this course of action (J v Director of Proceedings (Baragwanath J, 17 October 2006, CIV-2006-404-2186).
27.
The submission made by the PCC was that given the circumstances of the offending, the Tribunal should cancel Mr Hansson’s registration.
8 28.
In PCC v Martin (27 February 2007, High Court Wellington CIV-2006-485-146), Gendall J stated that although the cancellation of a practitioner’s registration had a punitive effect, that is not why the order should be made: “It was made for the primary purpose of protecting the public and community by upholding proper professional standards, deterrence (both specific and general), ensuring only those who are fit in the widest sense, to practise are given that privilege.” (para 23)
29.
There are many cases where misuse of drug convictions have resulted in orders of removal of name from the register under the Nurses Act. Examples are: Ibbiston (20 December 2002); Gouthier (7 October 2005); Rochester (23 May 1996); and Kennedy (4 February 2003).
30.
The Tribunal concluded that an order of cancellation should be imposed for the following reasons: 30.1
If there were to be an order of cancellation, Mr Hansson could subsequently apply for registration again to the Nursing Council. In doing so, he would be obliged to provide a proper explanation of these events and what his current level of fitness was. That would provide an element of scrutiny which would not be present if the practitioner was suspended. In a suspension situation, the practitioner could simply resume practice at the end of the period of suspension.
30.2
The only explanation that was given was that Mr Hansson had a drug habit that was out of control.
30.3
The Tribunal regards the offending in this case as serious. The Tribunal cannot be satisfied that the protection of the public and the maintenance of proper professional standards could be maintained by anything other than the imposition of an order of cancellation.
9 31.
The Tribunal next considers the issue of costs. Mr Hansson wrote to the PCC on 2 February 2007, stating he was impecunious, because of the Court ordered reparation of $3,134.00. He also said in an email to the Tribunal that he was paying child support from his benefit, and was also paying WINZ a proportion of his benefit in relation to a debt. He was left with $160.00 per week to live on.
32.
The Tribunal has determined that Mr Hansson should pay $250.00 at $10.00 per week as a contribution to the costs of and incidental to the inquiry by the PCC and the hearing by the Tribunal. This sum is to be apportioned equally between those two bodies. The Tribunal makes such an order because it is of the view that Mr Hansson should make a contribution towards the costs and expenses which have been incurred, albeit one which is very limited because of his financial circumstances.
33.
A final issue relates to publication. The important principles of open justice are strongly supported in this case by the offending. The District Court made no order of name suppression. It is undoubtedly in the public interest that members of the public are aware of the circumstances. The Tribunal directs that the Executive Officer publish in the New Zealand Gazette, Kai Tiaki, the Nursing Council Newsletter, and the Nursing Review, a summary of its findings and orders. That summary should include reference to Mr Hansson’s name. The Tribunal also orders that its decision be published on the Tribunal’s website.
Conclusion: 34.
The Tribunal has determined that the convictions in the charge reflect adversely on Mr Hansson’s fitness to practise.
35.
The penalties imposed by the Tribunal are: 35.1
Mr Hansson’s registration as a nurse is cancelled (section 101(1)(a) of the HPCA Act).
10 35.2
Mr Hansson is to pay $250.00 as a contribution to the total costs and expenses of and incidental of the hearing by the Tribunal, and the inquiry made by the PCC in relation to the subject matters of the charge. The payment is to be made at the rate of $10.00 per week. Each body is to receive half of the amount recovered (section 101(1)(f) of the HPCA Act).
35.3
The Tribunal directs that a notice stating the effect of the Tribunal’s decision be published in the New Zealand Gazette, Kai Tiaki, the Nursing Council Newsletter, and the Nursing Review, with express reference being made to Mr Hansson’s name and that the decision be published on the Tribunal’s website (section 157 of the HPCA Act).
DATED at Wellington this 6th day of September 2007
................................................................ B A Corkill QC Chairperson Health Practitioners Disciplinary Tribunal
