Health Ombudsman v AER - [2021] QCAT 178

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v AER [2021] QCAT 178

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

AER

(respondent)

APPLICATION NO/S:

OCR108-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 May 2021 (ex tempore)

HEARING DATE:

26 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Harriet Barker
Ms Mary Barnett

Mr Brad Taylor

ORDERS:

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

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

3. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:

(a)    the contents of any document or thing produced to the Tribunal; and

(b)   the orders made and reasons given by the Tribunal; and

(c)    evidence before the Tribunal.

to the extent that it could identify, or lead to the identification of, the respondent, any family member of the respondent, any patient or former patient of the respondent, or any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise the Australian Health Practitioner Regulation Agency of the outcome of this proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the respondent misappropriated controlled drugs during the course of his employment – whether such conduct should be characterised as professional misconduct – what sanction should be imposed for professional misconduct – where parties submit agreed position on characterisation of conduct and sanction

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether a non-publication order should be made to prohibit publication of the identity of the respondent

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Health Ombudsman v CLT (No 2) [2019] QCAT 379

Legal Services Commissioner v McLeod [2020] QCAT 371
Medical Board of Australia v Martin [2013] QCAT 376

Medical Board of Australia v Waldron [2017] QCAT 443

APPEARANCES & REPRESENTATION:

Applicant:

D Dupree of the Office of the Health Ombudsman

Respondent:

S Robb instructed by QNMU Law

REASONS FOR DECISION

This is a referral of a health service complaint against AER (respondent) pursuant to sections 103(1)(a), and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The parties have jointly filed and rely upon a statement of agreed facts and there are no factual issues in dispute. The parties also agree as to the characterisation…

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: [2021] QCAT 178
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was asked to determine whether the respondent, a registered nurse, misappropriated controlled drugs during his employment, and if so, what sanction should be imposed. The Health Ombudsman alleged that the respondent misappropriated Endone tablets intended for a patient and also replaced an Endone tablet with a Paracetamol tablet, intending to administer the Paracetamol tablet to the patient. The parties agreed on the characterisation of the conduct and the appropriate sanction. The Tribunal found that the respondent's conduct constituted professional misconduct, contrary to professional codes of conduct, criminal law, legislation, and employer policies. The Tribunal decided that the respondent had behaved in a way that constituted professional misconduct, and ordered a reprimand. The Tribunal also granted a non-publication order to protect the respondent's mental health and privacy, as recommended by the respondent's treating psychiatrist. The order prohibits the publication of the respondent's identity, as well as the contents of any document or thing produced to the Tribunal, the orders made and reasons given by the Tribunal, and evidence before the Tribunal, to the extent that it could identify, or lead to the identification of, the respondent, any family member of the respondent, any patient or former patient of the respondent, or any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise the Australian Health Practitioner Regulation Agency of the outcome of this proceeding.

Orders