Colagrande v Health Ombudsman - [2017] QCAT 107

CITATION:	Colagrande v Health Ombudsman [2017] QCAT 107
PARTIES:	CESIDIO COLAGRANDE (Applicant)
v
HEALTH OMBUDSMAN (Respondent)
APPLICATION NUMBER:	OCR047-17
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	11 and 20 April 2017
HEARD AT:	Brisbane
DECISION OF:	Judge S Sheridan, Deputy President Assisted: Dr G Powell Dr J Osborne Mr P Zimon
DELIVERED ON:	18 and 21 April 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of the Health Ombudsman on 17 February 2017 imposing conditions on the registration of the applicant is set aside. 2. The registration of the applicant be subject to the conditions set out in the attached schedule. 3. Each party is at liberty to make an application for miscellaneous matters in these proceedings for further orders. 4. The applicant is to file his submissions on costs by 28 April 2017. 5. The respondent is to file his submissions on costs by 5 May 2017.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the practitioner was convicted by a jury of sexual assault of a patient – where the practitioner was sentenced to nine months imprisonment, wholly suspended for 18 months – where the Health Ombudsman took immediate action in relation to the practitioner under s 58 of the Health Ombudsman Act 2013 (Qld) – where the immediate action imposed a condition that the practitioner must not have contact with female patients – whether the Tribunal believes the action is necessary to protect public health or safety Evidence Act 1977 (Qld), s 79 Health Ombudsman Act 2013 (Qld), s 57, s 58, s 63 Health Practitioner Regulation National Law Act 2009 (Qld), s 155, s 156(1)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Azam v Medical Board of Australia [2013] QCAT 611, cited Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409, cited I v Medical Board of Australia [2011] SAHPT 18, followed Liddell v Medical Board of Australia [2012] WASAT 120, cited MLNO v Medical Board of Australia [2012] VCAT 1613, cited Pearse v Medical Board of Australia [2013] QCAT 392, followed Shahinper v Psychology Board of Australia [2013] QCAT 593, cited WD v Medical Board of Australia [2013] QCAT 614, cited
APPEARANCES:
APPLICANT:	P J Davis QC with J R Jones instructed by Ashurst Lawyers
RESPONDENT:	G R Rice QC instructed by the Office of the Health Ombudsman

REASONS FOR DECISION

Dr Colagrande is a cosmetic surgeon. On 17 February 2017, the Health Ombudsman decided to take immediate action in relation to him under s 58 of the Health Ombudsman Act 2013 (Qld) (Health Ombudsman Act). Acting under s 59(4) of the Health Ombudsman Act, the action was taken without first giving Dr Colagrande an opportunity to make submissions orally or in writing; the Health Ombudsman having been satisfied that the taking of action without complying with the show cause process was necessary to ensure the health…

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 107
Decision Date: 18 April 2017 & 21 April 2017

CaseChat Overview and Summary

In Colagrande v Health Ombudsman, the appellant, Dr Colagrande, a medical practitioner, contested a decision of the Health Ombudsman of Queensland to impose conditions on his medical registration. The dispute arose after Dr Colagrande was convicted by a jury of sexually assaulting a patient. He was sentenced to nine months imprisonment, wholly suspended for 18 months. The Health Ombudsman immediately took action under section 58 of the Health Ombudsman Act 2013 (Qld), imposing a condition that Dr Colagrande must not have contact with female patients. The appellant sought judicial review of the Ombudsman's decision, arguing it was unreasonable and not necessary to protect public health or safety.

The primary legal issue was whether the conditions imposed by the Health Ombudsman were necessary to protect public health or safety. The court had to consider the appropriate standard of review and assess whether the Ombudsman's decision was supported by relevant considerations and was not affected by irrelevant considerations or errors of law. The court also needed to determine whether the conditions imposed were proportionate to the risk posed by Dr Colagrande.

The court held that the Ombudsman's decision was unreasonable and set it aside. The conditions imposed were not necessary to protect public health or safety, and the Ombudsman had not considered all relevant factors in making the decision. The court found that the conditions were overly broad and did not adequately address the specific risk posed by Dr Colagrande. The court imposed new conditions on Dr Colagrande's registration, which were more tailored to the specific circumstances of the case.

In summary, the court quashed the decision of the Health Ombudsman and imposed new conditions on the appellant's medical registration. The court held that the original decision was unreasonable and not supported by the evidence. The new conditions imposed by the court were more specific and tailored to the particular circumstances of the case. Both parties were directed to file submissions on costs within specified timeframes.

Orders

Orders of the court

1. The decision of the Health Ombudsman on 17 February 2017 imposing conditions on the registration of the applicant is set aside.

2. The registration of the applicant be subject to the conditions set out in the attached schedule.

3. Each party is at liberty to make an application for miscellaneous matters in these proceedings for further orders.

4. The applicant is to file his submissions on costs by 28 April 2017.

5. The respondent is to file his submissions on costs by 5 May 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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