A Practitioner v The Health Ombudsman - [2017] QCAT 265

CITATION:

A Practitioner v The Health Ombudsman [2017] QCAT 265

PARTIES:	A Practitioner (Applicant)
v
The Health Ombudsman (Respondent)

APPLICATION NUMBER:

OCR018-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

2 August 2016

HEARD AT:

Brisbane

DECISION OF:

Judge Suzanne Sheridan, Deputy President

DELIVERED ON:

21 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to set aside the decision of the Health Ombudsman to impose an interim prohibition order is dismissed.

2. A non-publication order is made in relation to the publication of any material forming part of the record of proceedings and evidence given before the Tribunal to any person other than a party to these proceedings, a member of the Tribunal or staff of the registry for the Tribunal, except as required by s 79 of the Health Ombudsman Act 2013 (Qld).

3. The Health Ombudsman is to file submissions on costs by 4:00pm Monday 4 September 2017.

4. The practitioner is to file submissions on costs by 4:00pm Monday 18 September 2017.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the practitioner was an unregistered health practitioner – where the Health Ombudsman took immediate action by issuing an interim prohibition order in relation to the practitioner under s 68 of the Health Ombudsman Act 2013 (Qld) – where the interim prohibition order prohibited the practitioner from engaging in any employment or providing any services (paid or otherwise) in a clinical or non-clinical capacity, which relates to the provision of a health service – whether the Tribunal believes the action is necessary to protect public health or safety

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the practitioner sought a non-publication order prohibiting the publication of her name, medical information and the names of her children, step-child and partner – where s 79 of the Health Ombudsman Act 2013 (Qld) requires the Health Ombudsman to publish certain information on the Health Ombudsman website – whether a non-publication order should be made

Health Ombudsman Act 2013 (Qld), s 68, s 79
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Zaphir v Health Ombudsman [2017] QCAT 193, cited

APPEARANCES:

APPLICANT:

D Burrell

RESPONDENT:

L Crowley instructed by the Office of the Health Ombudsman

REASONS FOR DECISION

Background

The practitioner commenced casual employment with a company in the position of Housekeeper working at a rehabilitation retreat in early 2014. The company provided a range of education based residential programs for people suffering mental illnesses including depression, anxiety, substance abuse and stress.
The practitioner signed a contract of employment with the company in the position of Housekeeper and Massage Therapist two months later. At or about that time, the practitioner commenced providing massage services to clients and acting as an overnight chaperone for clients at the facility.
The complainant, AD, participated in a four week program at the facility for, amongst other things, treatment for drug and alcohol addictions. During that program, the practitioner provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCAT 265
Decision Date: 21 August 2017

CaseChat Overview and Summary

The Health Ombudsman took action against an unregistered health practitioner by issuing an interim prohibition order, which prevented the practitioner from engaging in any employment or providing any services related to health services. The practitioner, in response, sought to set aside the order and also applied for a non-publication order to prevent the disclosure of her personal information. The case was heard by a tribunal which had to decide whether the prohibition order was necessary to protect public health and safety, and if a non-publication order should be granted in relation to the practitioner’s personal information.

The tribunal examined the statutory provisions under which the Health Ombudsman acted and considered the evidence presented. It held that the interim prohibition order was necessary to protect public health and safety, as there was a risk that the practitioner’s actions could cause harm. Regarding the non-publication order, the tribunal acknowledged the practitioner’s right to privacy but also recognised the statutory requirement for the Health Ombudsman to publish certain information on its website. The tribunal concluded that a non-publication order should be granted in relation to the publication of material forming part of the record of proceedings and evidence given before the tribunal to any person other than a party to these proceedings, a member of the tribunal or staff of the registry for the tribunal, except as required by statute.

The tribunal dismissed the practitioner’s application to set aside the interim prohibition order, and granted a non-publication order in relation to the publication of certain material. The Health Ombudsman was directed to file submissions on costs by a specific date, and the practitioner was also directed to file submissions on costs by another date. The tribunal’s decision was based on a careful consideration of the statutory provisions, the evidence presented, and the competing interests of the parties.

Orders

Orders of the court

1. The application to set aside the decision of the Health Ombudsman to impose an interim prohibition order is dismissed.

3. The Health Ombudsman is to file submissions on costs by 4:00pm Monday 4 September 2017.

4. The practitioner is to file submissions on costs by 4:00pm Monday 18 September 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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