Elo v Health Ombudsman - [2025] QCAT 249

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ELO v Health Ombudsman [2025] QCAT 249

PARTIES:

ELO

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO/S:

OCR270-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 September 2025

HEARING DATE:

3 September 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Reid
Assisted by:
Mr C Burns
Ms J Felton
Ms K Vidler

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Health Ombudsman’s decision to suspend the applicant’s registration is confirmed.

2. The parties have liberty to apply for costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the applicant practitioner seeks a review of the respondent regulator’s decision to suspend his registration by way of immediate action – where the applicant has been charged with sexual offences including rape and sexual assault – where the applicant’s criminal trial has not proceeded at the time of the Tribunal’s decision – whether the applicant poses a serious risk – whether the decision should be confirmed as a matter of public interest

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Aggarwal v Health Ombudsman [2024] QCAT 385

Health Ombudsman v Harirchian [2021] QCA 141
Medical Board of Australia v Liang Joo Leow 2019 [VSC] 532

Medical Board of Australia v Liang Joo Leow 2019 [VSC] 532

APPEARANCES & REPRESENTATION:

Applicant:

C Bolovan instructed by Kilmartin Knyvett Lawyers

Respondent:

C Templeton instructed by the Office of the Health Ombudsman

REASONS FOR DECISION

The applicant and a fellow female medical radiation practitioner (‘complainant’) were work friends at a public hospital in the Brisbane area. They were close work friends but had not, until the night of 22 June 2024, socialised outside of the workplace. On that night they, and other work colleagues, went out to bars and restaurants in the Brisbane CBD. They drank heavily. The complainant was particularly affected by alcohol. As a result, those work colleagues who were with her determined to book a hotel room for her to allow her to sleep. They did so because they formed the view that to allow her to take a taxi or uber home was potentially unsafe because of her intoxication.
A group of three workmates, including the applicant, effectively put her to bed in the hotel room and then left her to sleep. The applicant, however, took a key to the room. The others did not observe him doing so. He returned later and let himself into the room. The complainant says he then raped her.
He denies the allegations and said to her, in a recorded pretext call between them only shortly afterwards, that she and he had in fact arranged earlier in the night to meet at a hotel, for the purpose of consensual sexual conduct.
The applicant was charged with serious sexual offences, three charges of rape, arising from that alleged conduct, and lesser sexual…

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: [2025] QCAT 249
Decision Date: 12 September 2025

CaseChat Overview and Summary

The matter before the Tribunal was an application by Elo, a registered health practitioner, to review the Health Ombudsman's decision to suspend his registration under section 58(1)(d) of the Health Ombudsman Act 2013 (Qld). Elo sought the review on the grounds that the Ombudsman’s decision was unreasonable and should be set aside. The Tribunal had to determine whether the suspension was justified based on the statutory criteria, specifically whether Elo posed a serious risk to public health and safety, or if the action was otherwise in the public interest. Elo had been charged with serious sexual offences including rape and sexual assault, although his criminal trial had not yet proceeded at the time of the Tribunal’s decision.

The key legal issues for the Tribunal were whether the Health Ombudsman had a reasonable belief that Elo posed a serious risk to persons, and whether it was necessary to take immediate action to protect public health and safety under section 58(1)(a) of the HO Act. Alternatively, the Tribunal had to consider whether the suspension was in the public interest under section 58(1)(d). The Tribunal also had to examine the principles relevant to immediate action orders as outlined in Aggarwal v Health Ombudsman, particularly the requirement for urgent action based on a reasonable belief of a serious risk. The material available to the Tribunal included the charges against Elo and allegations of inappropriate conduct in a social setting, which were considered in the context of Elo’s unblemished professional record.

In dismissing the application, the Tribunal concluded that while Elo's alleged conduct demonstrated a lack of regard for others' wellbeing, the fact that it occurred in a social setting, away from his professional duties, and that his professional record was unblemished, meant that it was not appropriate to suspend his registration under section 58(1)(a). However, the Tribunal determined that the suspension was justified under section 58(1)(d) of the HO Act as it was in the public interest to maintain public confidence in the provision of health services. The Tribunal found that the serious nature of the charges against Elo warranted the Ombudsman’s action to protect public confidence, despite the absence of a definitive conviction.

The Tribunal confirmed the Health Ombudsman's decision to suspend Elo's registration and left the matter of costs open for the parties to apply for.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Health Ombudsman’s decision to suspend the applicant’s registration is confirmed.

2. The parties have liberty to apply for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 58 of the HO Act is in the following terms:Power to take immediate registration action(1)The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if– (a)the health ombudsman reasonably believes that – (i)because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and(ii)it is necessary to take the action to protect public health or safety; or(b)the health ombudsman reasonably believes the practitioner’s registration was improperly obtained because the practitioner or someone else gave a National Board information or a document that was false or misleading in a material particular; or(c)the practitioner’s registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction under the National Law; or(d)the health ombudsman reasonably believes the action is otherwise in the public interest.Example of when action may be taken in the public interest – A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners. I have determined to dismiss the application by reason of s 58(1)(d) of the HO Act. I do not conclude it would be appropriate to do so under section 58(1)(a) as I do not conclude that the conduct of the applicant is such that he poses a serious risk to persons, and it is necessary to suspend him to protect public health and safety. In so concluding, I do not intend to indicate there is no such risk. His alleged conduct indicates a lack of regard for other persons’ wellbeing or for appropriate respect of boundaries, but the fact it was in a social setting, away from his workplace, and that his work record is untainted by any findings against him, supports the view that reliance on section 58(1)(a) would not be appropriate. It is the common view of the parties that a useful summary of the principles relevant to the Tribunal’s consideration of this application, as set out by Judicial Member Dick SC in Aggarwal v Health Ombudsman [2024] QCAT 385, are as follows:[2](1) an immediate action order does not require detailed inquiry;(2) it requires action on an urgent basis because of the need to protect public health and safety;(3) the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk; (4) an immediate action order may be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;(5) the mere fact and seriousness of the charges supported by the untested statements of witnesses in a particular case may be well sufficient to create the necessary reasonable belief as to the existence of the risk;(6) the material available should be carefully scrutinised in order to determine the weight to be attached to it; (7) a complaint that is trivial or misconceived on its face will clearly not be given weight; (8) the nature of the allegations will be highly relevant to the issue of whether the order is justified.[2]Aggarwal v Health Ombudsman [2024] QCAT 385, 6 [22].