Health Ombudsman v ANP - [2022] QCAT 6

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v ANP [2022] QCAT 6

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

ANP

(respondent)

APPLICATION NO/S:

OCR365-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 January 2022

HEARING DATE:

19 November 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
Dr J Osborne,
Professor J Searle,
Ms J Felton

ORDERS:

1.       The conduct of the respondent referred to in the referral constituted professional misconduct.

2.       The respondent is reprimanded.

3.       The decision of the applicant of 18 September 2019 to suspend the registration of the respondent is set aside.

4.       The registration of the respondent as a medical practitioner is suspended until 27 April 2022.

5.       The parties bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – convicted of distributing child exploitation material – bottom of range for offence – unidentified psychological conditions – ceased practice – conditions treated successfully – insight and rehabilitation – sanction – registration suspended

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

Chen v Health Care Complaints Commission [2017] NSWCA 186
Health Ombudsman v Creagh-Scott [2019] QCAT 69
Health Ombudsman v Fletcher [2021] QCAT 4
Health Ombudsman v Franklin [2021] QCAT 186
Health Ombudsman v OOD [2021] QCAT 388
Honey v Medical Practitioners Board of Victoria [2007] VCAT 526
LCK v Health Ombudsman [2020] QCAT 316
Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10
Medical Board of Australia v Black [2016] VCAT 892
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

S Holt QC instructed by Behlau Murakami Grant, solicitors

REASONS FOR DECISION

This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) (“the Act”) s 103(1)(a), s 104. Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Dr J Osborne, Professor J Searle and Ms J Fenton in accordance with the Act.[1]
[1]Health Ombudsman Act 2013 s 126. For their function, see s 127.
The respondent was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, in that he has been convicted of one count of distributing child exploitation material contrary to the Criminal Code s 228C(1). The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is legally represented, and has provided submissions in writing and filed a number of affidavits. The parties have provided an agreed statement of facts for the proceeding. There is no dispute that the respondent engaged in professional misconduct,…

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: [2022] QCAT 6
Decision Date

CaseChat Overview and Summary

The applicant, the Health Ombudsman, commenced proceedings against the respondent, a registered medical practitioner, under the Health Ombudsman Act 2013 (Qld) (“the Act”) alleging that he engaged in professional misconduct. The Tribunal had to determine whether the respondent’s conduct amounted to professional misconduct, and if so, what sanction should be imposed. The applicant alleged that the respondent’s conduct, in that he had been convicted of one count of distributing child exploitation material contrary to the Criminal Code s 228C(1), amounted to professional misconduct. The Tribunal accepted the parties’ agreed statement of facts, and found that the respondent had engaged in professional misconduct. The Tribunal accepted the submission of the applicant that the respondent’s conduct fell substantially below the conduct expected of a medical practitioner of an equivalent level of training and experience. The Tribunal found that the respondent’s conduct was appropriately characterised as professional misconduct. The Tribunal considered the appropriate sanction to be imposed. The health and safety of the public are paramount.[a] Disciplinary proceedings are protective, not punitive in nature.[b] Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.[c] Insight and remorse on the part of the respondent are also relevant.[d] The fitness to practice of the respondent is to be assessed at the time of the hearing.[e] The Tribunal decided that the appropriate sanction was a reprimand, and that the respondent’s registration be suspended until 27 April 2022. The Tribunal set aside the applicant’s decision to suspend the respondent’s registration on 18 September 2019, and ordered that the parties bear their own costs of the proceeding.

[a]Health Ombudsman Act 2013, s 4(1).
[b]Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122].
[c]Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79].
[d]Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143].
[e]Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].

Orders