Health Ombudsman v Arora - [2019] QCAT 200

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Arora [2019] QCAT 200

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

VIJAY ARORA

(respondent)

APPLICATION NO:

OCR052-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 May 2019 (ex tempore)

HEARING DATE:

22 May 2019

HEARD AT:

Brisbane

DECISION OF:

John Robertson, Judicial Member

Assisted by:
M Barnett
M Halliday
S Lewis

ORDERS:

The Tribunal finds that in respect of charges 1-5 of the disciplinary referral, the respondent has behaved in a way that constitutes professional misconduct; and orders that:

(a)   The respondent is reprimanded;

(b)   The respondent is disqualified from applying for registration as a health care practitioner for a period of 6 years; and

(c)    There is no order as to costs.

CATCHWORDS:

ADMINISTRATIVE TRIBUNALS – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the disciplinary proceedings against the respondent involve allegations of inappropriate sexual conduct as against three separate female patients – where the allegations were the subject of three separate criminal trials – where the respondent was acquitted on all counts in all three trials – whether the Tribunal finds the allegations made out on the balance of probabilities

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the disciplinary proceedings against the respondent involve allegations of sexual misconduct as against three separate female patients – where the respondent denies the conduct but otherwise declined to submit any evidence or make any submissions in the proceedings – where the respondent is no longer registered

Evidence Act 1977 (Qld), s 93B
Health Ombudsman Act 2012 (Qld), s 4, s 107
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28

Briginshaw v Briginshaw (1938) 60 CLR 336
Legal Services Commissioner v Madden (No 2) [2008] QCA 301
Nursing and Midwifery Board of Australia v Caroll [2011] QCAT 264
Pfennig v The Queen (1995) 182 CLR 461
Pharmacy Board of Australia v Tan [2016] VCAT 1653

APPEARANCES & REPRESENTATION:

Applicant:

J Hunter instructed by the Director of Proceedings, on behalf of the Health Ombudsman

Respondent:

E Bassingthwaighte (sol) Hall Payne Lawyers (the respondent appeared in person)

MR ROBERTSON: On the 28^th of February 2018, the Health Ombudsman (the applicant) referred to this Tribunal for hearing five allegations of professional misconduct and/or unprofessional misconduct against Vijay Arora (the respondent) in his capacity, at all material times, as an employed registered nurse at either QEII and/or PA Hospitals. It is common ground that all relevant times, the respondent was registered under the Health Practitioner Regulation National Law (Queensland) (“the National Law”) as a registered nurse with the Nursing and Midwifery Board of Australia (the Board), and was subject to the Standards and Codes relating to appropriate professional practice and ethics as a nurse.

Particulars of each charge are set out in the application at pages 2 to 5. In essence, it is alleged that on a number of occasions, the respondent engaged in non-consensual sexual contact with hospitalised female patients under his care whilst…

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: [2019] QCAT 200
Decision Date: 22 May 2019 (ex tempore)

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was called upon to consider disciplinary proceedings against a former registered nurse, Mr. Arora, who faced allegations of inappropriate sexual conduct towards three separate female patients. The proceedings were initiated by the Health Ombudsman and followed the completion of three separate criminal trials, where Mr. Arora was acquitted on all counts. The central issue before the Tribunal was whether the allegations were substantiated on the balance of probabilities, despite the criminal acquittals, and if so, whether such conduct constituted professional misconduct.

The Tribunal had to navigate the complexities of determining professional misconduct in the absence of convictions and had to consider the respondent's failure to present evidence or make submissions in his defence. The Tribunal concluded that the respondent's conduct, as alleged, amounted to professional misconduct, emphasising the importance of maintaining professional standards and the duty of care owed by health practitioners to their patients.

In reaching its decision, the Tribunal weighed the respondent's acquittals in the criminal trials against the allegations and the evidence presented. The Tribunal determined that the disciplinary body was not bound by the criminal proceedings' outcomes and could make its own findings based on the balance of probabilities. The Tribunal found the allegations proven and ordered that Mr. Arora be reprimanded, disqualified from applying for registration as a health care practitioner for six years, and made no order as to costs.

Orders

Orders of the court

The Tribunal finds that in respect of charges 1-5 of the disciplinary referral, the respondent has behaved in a way that constitutes professional misconduct; and orders that:

(a) The respondent is reprimanded;

(b) The respondent is disqualified from applying for registration as a health care practitioner for a period of 6 years; and

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

Full text does not contain this section.

CITATION:	Health Ombudsman v Arora [2019] QCAT 200
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
VIJAY ARORA (respondent)
APPLICATION NO:	OCR052-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	22 May 2019 (ex tempore)
HEARING DATE:	22 May 2019
HEARD AT:	Brisbane
DECISION OF:	John Robertson, Judicial Member Assisted by: M Barnett M Halliday S Lewis
ORDERS:	The Tribunal finds that in respect of charges 1-5 of the disciplinary referral, the respondent has behaved in a way that constitutes professional misconduct; and orders that: (a) The respondent is reprimanded; (b) The respondent is disqualified from applying for registration as a health care practitioner for a period of 6 years; and (c) There is no order as to costs.
CATCHWORDS:	ADMINISTRATIVE TRIBUNALS – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the disciplinary proceedings against the respondent involve allegations of inappropriate sexual conduct as against three separate female patients – where the allegations were the subject of three separate criminal trials – where the respondent was acquitted on all counts in all three trials – whether the Tribunal finds the allegations made out on the balance of probabilities PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the disciplinary proceedings against the respondent involve allegations of sexual misconduct as against three separate female patients – where the respondent denies the conduct but otherwise declined to submit any evidence or make any submissions in the proceedings – where the respondent is no longer registered Evidence Act 1977 (Qld), s 93B Health Ombudsman Act 2012 (Qld), s 4, s 107 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Briginshaw v Briginshaw (1938) 60 CLR 336 Legal Services Commissioner v Madden (No 2) [2008] QCA 301 Nursing and Midwifery Board of Australia v Caroll [2011] QCAT 264 Pfennig v The Queen (1995) 182 CLR 461 Pharmacy Board of Australia v Tan [2016] VCAT 1653
APPEARANCES & REPRESENTATION:
Applicant:	J Hunter instructed by the Director of Proceedings, on behalf of the Health Ombudsman
Respondent:	E Bassingthwaighte (sol) Hall Payne Lawyers (the respondent appeared in person)