Health Ombudsman v ADV - [2020] QCAT 364

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v ADV [2020] QCAT 364

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

ADV

(respondent)

APPLICATION NO/S:

OCR092-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 October 2020

HEARING DATE:

9 September 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Harriet Barker
Ms Suzanne Harrop

Dr Anthony Tuckett

ORDERS:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;

3. No order as to costs.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a Registered Nurse – where the referral alleges professional misconduct – where the alleged professional misconduct involved the respondent pleading guilty to four counts of possessing dangerous drugs, one count of unlawful possession of restricted drugs, one count of unlawful possession of suspected stolen property and one count of possessing utensils for use – whether such conduct should be characterised as professional misconduct – what sanction should be imposed

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law(Queensland), s 5, s 130

Health Ombudsman v Bricknell [2019] QCAT 340
Health Ombudsman v Brown [2019] QCAT 218
Health Ombudsman v De Celis [2019] QCAT 140

Medical Board of Australia v Jansz [2011] VCAT 1026 Queensland Nursing Council v Dodd [2010] QDC 220

APPEARANCES &

REPRESENTATION:

Applicant: C Wilson instructed by the Office of the Health Ombudsman

Respondent: Self-represented

REASONS FOR DECISION

These disciplinary proceedings were referred to the Tribunal by Application filed by the applicant on 29 March 2019. The application contains 2 allegations. The first relates the respondents’ convictions on her own plea of guilty to seven offences in the Southport Magistrates Court on 8 December 2017. The applicant alleges that as a registered nurse at all relevant times, the respondent has therefore engaged in professional misconduct as defined in the Health Practitioner Regulation National Law (Queensland) (the National Law).[1] The second allegation is that the respondent failed to provide written notice to the Nursing and Midwifery Board of Australia (the Board) within seven days of her conviction;[2] and has therefore engaged in unprofessional conduct as defined by the National Law.[3]
[1]Section 5.
[2]Section 130(1) and (3)(a)(ii), National Law.
[3]Section 5.
In her response filed 28 November 2019, although challenging a lot of the material in the Hearing Brief (HB), the respondent does not dispute the fact of her convictions on 8 December, or that she failed to notify the Board of those convictions within the relevant period.
In her submission however,[4] the respondent commences by stating “I am not guilty of the offenses (sic) alleged by OHO.”
[4]HB, undated in Tab 2.
At a directions hearing in December 2019, the parties agreed that these disciplinary proceedings be heard on the papers. The Tribunal therefore has not had the opportunity to have challenged evidence tested…

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: [2020] QCAT 364
Decision Date: 14 October 2020

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against ADV, a Registered Nurse, concerning allegations of professional misconduct. The case was heard and determined by a tribunal. The central issue before the tribunal was whether the respondent’s criminal convictions for possessing dangerous drugs, unlawful possession of restricted drugs, unlawful possession of suspected stolen property, and possessing utensils for use, should be characterised as professional misconduct under the Health Ombudsman Act 2013. The tribunal needed to determine the appropriate sanction, if any, that should be imposed on the respondent.

The tribunal carefully considered the respondent’s admissions and the evidence presented. The respondent admitted to the facts leading to her criminal convictions. The tribunal noted that the respondent had self-admitted to a hospital close to the execution of the search warrant on her premises, where she was assessed as unfit to work. Despite the respondent’s strong dispute about certain notes taken by health practitioners during her hospital admission, the tribunal found that these details were marginally relevant to the issue of misconduct. The tribunal emphasised that the respondent’s health impairment was being managed by AHPRA and the Board, and was not part of the referral.

Following its consideration of the evidence and admissions, the tribunal concluded that the respondent’s criminal convictions did constitute professional misconduct. The tribunal imposed a reprimand on the respondent as the appropriate sanction. No order was made as to costs.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;

3. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 79 is in these terms:79 Convictions as evidence in civil proceedings(1)In this section – civil proceeding does not include an action for defamation.convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.(2)In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.(3)In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.(4)This section applies –(a)whether or not a person was convicted upon a plea of guilty; and(b)whether or not the person convicted is a party to the civil proceeding. Although probably irrelevant to the Tribunal’s role given the admissions of fact made by the respondent, I have decided to briefly deal with a number of issues that are strongly disputed by the respondent and which are (a) relevant to the issue of insight and remorse and (b) marginally relevant to the proof of the convictions. As discussed below, any health impairment is not part of the referral and is being managed by AHPRA and the Board. She does agree that she self-admitted to the Robina Hospital on 3 October 2017 which was very close to the execution of the search warrant on her premises. Although she is the co-owner of the premises, it is clear that a number of other people were living there at the time as tenants or invitees including her co-accused and former partner (the other co-owner although the evidence does not reveal the nature of the tenure); who pleaded guilty to a number of similar charges on the same day. She also agrees,[15] that following, that admission she was assessed as being unfit to work. She strongly disputes the notes taken by other health practitioners during her admission to Robina and I will come to that later.[15]Statement of Agreed Facts, para 9. On 17 November 2017, the Australian Health Practitioner Regulatory Authority (AHPRA) accepted an undertaking by the respondent that she not practice as a registered nurse in the health profession. OHO and AHPRA had become involved soon after 3 October as a result of mandatory notifications made by a medical practitioner from Robina, the police and the Director of Nursing at TPCH where she was working at the relevant time. On 21 June 2018, AHPRA imposed conditions on her registration which were effectively similar to the terms of her undertaking and which prevented her working as a registered nurse either in a clinical of non-clinical role, however she was permitted to practice in an administrative capacity. The conditions were relaxed somewhat on 11 December 2019, which included pre-existing conditions about practicing only at places approved by the Board, an inability to handle Schedule 8 drugs other than when directly observed by another registered health practitioner, and having a supervisor.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v ADV [2020] QCAT 364
PARTIES:	HEALTH OMBUDSMAN
(applicant)
v
ADV
(respondent)
APPLICATION NO/S:	OCR092-19
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	14 October 2020
HEARING DATE:	9 September 2020
HEARD AT:	Brisbane
DECISION OF:	Judicial Member J Robertson Assisted by: Ms Harriet Barker Ms Suzanne Harrop Dr Anthony Tuckett
ORDERS:	1. Pursuant to section 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 the respondent has behaved in a way that constitutes professional misconduct; 2. Pursuant to section 107(3)(a) of the *Health Ombudsman Act* 2013, the respondent is reprimanded; 3. No order as to costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a Registered Nurse – where the referral alleges professional misconduct – where the alleged professional misconduct involved the respondent pleading guilty to four counts of possessing dangerous drugs, one count of unlawful possession of restricted drugs, one count of unlawful possession of suspected stolen property and one count of possessing utensils for use – whether such conduct should be characterised as professional misconduct – what sanction should be imposed Health Ombudsman Act 2013 (Qld) s 107 Health Practitioner Regulation National Law(Queensland), s 5, s 130 Health Ombudsman v Bricknell [2019] QCAT 340 Health Ombudsman v Brown [2019] QCAT 218 Health Ombudsman v De Celis [2019] QCAT 140 Medical Board of Australia v Jansz [2011] VCAT 1026 Queensland Nursing Council v Dodd [2010] QDC 220
APPEARANCES & REPRESENTATION: Applicant: C Wilson instructed by the Office of the Health Ombudsman Respondent: Self-represented