Aggarwal v Health Ombudsman - [2024] QCAT 385

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Aggarwal v Health Ombudsman [2024] QCAT 385

PARTIES:

RUPIN AGGARWAL

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO:

OCR101-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 December 2024

HEARING DATE:

2 September 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Prof S Brun, Medical Practitioner Panel Member
Dr K Hames, Medical Practitioner Panel Member
Dr W Grigg, Public Panel Member

ORDERS:

1.       The application to review a decision filed 22 April 2024 is upheld.

2. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Health Ombudsman made 5 April 2024 is amended as follows:

(a)     Condition 3 of the Schedule of Conditions is replaced with the following:

1.       The practitioner must not have contact with, treat or continue to treat, a patient after becoming aware the patient may be experiencing, or has experienced, any form of domestic and family violence and must take all reasonable steps to ensure the patient is transferred to another registered health practitioner acceptable to the patient for ongoing care. The patient must be advised either by the practitioner or his place of practice that the practitioner is unavailable to continue their treatment.

2.       Unless otherwise directed by the Health Ombudsman, within five (5) days of the end of every calendar month the practitioner must provide a report to the Office of the Health Ombudsman regarding the number of patients who have been transferred to another registered health practitioner for the reasons set out in condition 1, and must verify the report contents with his employer. The report must include:

(a)      de-identified patient names (initials only);

(b)     the date the practitioner became aware of the patient’s history; and

(c)      the date the patient was transferred to another registered health practitioner.

‘Contact’ with a patient includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.

‘Communication device’ is defined as any hardware that transmits voice, video or text including those that transmit information via electronic booking applications.

‘Domestic and family violence’ means when one person behaves in a way that controls or dominates another person in a relevant relationship and causes fear for their safety and/or wellbeing - see Part 2, Division 1 and Division 2 of the Domestic and Family Violence Act 2012 for the full definition of domestic violence and relevant relationship.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC — where the applicant was subject to immediate registration action by the Health Ombudsman owing to being charged with a criminal offence — where the immediate registration action was imposed on the basis of being “otherwise in the public interest” — where the applicant sought review of the decision — meaning of “public interest” — where the conditions restricted the applicant’s practice — where the applicant practices in an “area of…

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: [2024] QCAT 385
Decision Date: 2 December 2024

CaseChat Overview and Summary

In the matter of Aggarwal v Health Ombudsman, the applicant, a medical practitioner, challenged a decision made by the Health Ombudsman to subject him to immediate registration action due to being charged with a criminal offence. The basis of the immediate action was that it was "otherwise in the public interest". The applicant sought a review of the decision, arguing that the restrictions imposed on his practice were not the least onerous means to achieve the purpose of the immediate registration action, particularly as he practiced in an area of need. The Queensland Civil and Administrative Tribunal (QCAT) was called upon to determine whether the Health Ombudsman's decision was the correct and preferable one.

The central legal issues before the Tribunal involved the interpretation of "public interest" in the context of the Health Ombudsman's powers, the proportionality of the restrictions imposed on the applicant's practice, and whether there were less onerous conditions that could be applied to achieve the same protective purpose. The Tribunal had to weigh the need to protect the public against the potential impact on the applicant's ability to provide medical services in an area of need. Additionally, the Tribunal needed to assess whether the conditions imposed by the Health Ombudsman were necessary and proportionate to the risks identified.

The Tribunal found that while the Health Ombudsman had the authority to impose immediate registration action, the specific conditions attached to the applicant's practice were not the least onerous means to achieve the protective purpose. The Tribunal concluded that less restrictive conditions could be applied, particularly given the applicant's practice in an area of need. Consequently, the Tribunal amended the decision by replacing Condition 3 of the Schedule of Conditions with a revised condition that required the applicant to transfer patients experiencing or at risk of domestic and family violence to another registered health practitioner, with additional reporting requirements. This amendment aimed to balance the need for public protection with the applicant's right to practice medicine in an area where his services are needed.

The Tribunal's final orders included upholding the application to review the decision and amending the conditions imposed by the Health Ombudsman. The new condition required the applicant to ensure that patients experiencing or at risk of domestic and family violence were transferred to another health practitioner and mandated monthly reports to the Office of the Health Ombudsman detailing the number of such transfers. The Tribunal's decision reflected a careful consideration of the public interest, the specific circumstances of the applicant's practice, and the need for proportionate regulatory measures.

Orders

Orders of the court

1. The application to review a decision filed 22 April 2024 is upheld.

2. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Health Ombudsman made 5 April 2024 is amended as follows:

(a) Condition 3 of the Schedule of Conditions is replaced with the following:

1. The practitioner must not have contact with, treat or continue to treat, a patient after becoming aware the patient may be experiencing, or has experienced, any form of domestic and family violence and must take all reasonable steps to ensure the patient is transferred to another registered health practitioner acceptable to the patient for ongoing care. The patient must be advised either by the practitioner or his place of practice that the practitioner is unavailable to continue their treatment.

2. Unless otherwise directed by the Health Ombudsman, within five (5) days of the end of every calendar month the practitioner must provide a report to the Office of the Health Ombudsman regarding the number of patients who have been transferred to another registered health practitioner for the reasons set out in condition 1, and must verify the report contents with his employer. The report must include:

(a) de-identified patient names (initials only);

(b) the date the practitioner became aware of the patient’s history; and

‘Contact’ with a patient includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.

‘Communication device’ is defined as any hardware that transmits voice, video or text including those that transmit information via electronic booking applications.

‘Domestic and family violence’ means when one person behaves in a way that controls or dominates another person in a relevant relationship and causes fear for their safety and/or wellbeing - see Part 2, Division 1 and Division 2 of the Domestic and Family Violence Act 2012 for the full definition of domestic violence and relevant relationship.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application to review a decision filed 22 April 2024 is upheld. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Health Ombudsman made 5 April 2024 is amended as follows:(a)Condition 3 of the Schedule of Conditions is replaced with the following:1. The practitioner must not have contact with, treat or continue to treat, a patient after becoming aware the patient may be experiencing, or has experienced, any form of domestic and family violence and must take all reasonable steps to ensure the patient is transferred to another registered health practitioner acceptable to the patient for ongoing care. The patient must be advised either by the practitioner or his place of practice that the practitioner is unavailable to continue their treatment.

Ratio Decidendi

Legal Principle Established

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