Health Ombudsman v Ask - [2022] QCAT 174

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v ASK [2022] QCAT 174

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

ASK

(respondent)

APPLICATION NO/S:

OCR103-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 April 2022 (ex tempore)

HEARING DATE:

7 April 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson
Assisted by:
Ms N Alexander,
Ms B Dixon,
Ms C Ashcroft.

ORDERS:

1. The Tribunal finds that the conduct of the respondent in allegations 1 and 2 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);

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

3. Pursuant to section 107(3)(b)(i) of the Health Ombudsman Act 2013 (Qld) the respondent is to complete specified education with six months in accordance with the attached set of conditions;

4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) the immediate registration action is set aside;

5. No order as to costs.

CATCHWORDS:

PROFESSIONALS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where respondent misappropriated Endone tablets – where he diverted Endone from a patient under his care – where respondent not convicted of criminal offending – professional misconduct – reprimand – ordered to undergo certain education

Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Qld)

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v Jamieson [2017] QCAT 172
Health Ombudsman v Haack [2020] QCAT 285

Medical Board of Australia v Jansz [2011] VCAT 1026

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On the 21st of April 2021 the Director of Proceedings, on behalf of the Health Ombudsman (the applicant), referred two health complaints to the Tribunal pursuant to the Health Ombudsman Act 2013 (Qld) alleging that the respondent, a registered enrolled nurse at all relevant times, had behaved in a manner that constitutes professional misconduct, by attempting to divert an Endone tablet, from a patient on the 23rd of September 2018, and actually diverting Endone from another patient on the 6th of November 2018, in circumstances in which the patients were under his care as a clinical nurse in a specialist unit at a Gold Coast Hospital.
In his response, filed on the 8th of August 2021, the respondent admits all factual allegations in the referral, and that his conduct may constitute professional misconduct as defined in all three limbs of the definition of that concept in section 5 of the Health Practitioner Regulation National Law (Qld) (National Law).
In the respondent’s submissions, filed on the 16th of November 2021, under the hand of Ms S Robb of counsel, the respondent accepts the allegations made against him in the referral, and that his proved conduct can be properly categorised as professional misconduct.
The parties have filed an agreed statement of facts. The parties also agree on the appropriate disciplinary response by…

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.

Keep reading for free

Create a free CaseChat account to read Health Ombudsman v Ask and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCAT 174
Decision Date

CaseChat Overview and Summary

The Health Ombudsman brought disciplinary proceedings against ASK, a registered nurse, alleging professional misconduct in two instances of misappropriating Endone tablets from patients under his care. The respondent admitted the allegations and that his conduct constituted professional misconduct. The Tribunal was required to determine whether the admitted conduct constituted professional misconduct, and if so, what disciplinary action should be imposed.

The Tribunal found that the admitted conduct of the respondent constituted professional misconduct as defined in the Health Practitioner Regulation National Law (Qld). The respondent's actions involved dishonest behaviour in his workplace, designed to deceive a nursing colleague who was there to ensure the proper protocols were observed in relation to the dispensation of Schedule 8 drugs to patients, for the purpose of obtaining those drugs for himself. It also involved a significant breach of trust both his colleague, his profession, his employer and his patients.

The parties agreed on the appropriate disciplinary response by way of sanction. The Tribunal considered the seriousness of the conduct, the need to deter others who may be tempted to act dishonestly in relation to medication intended for patients, and the need to encourage public confidence in the profession. The Tribunal also considered the respondent's insight and remorse, his cooperation with these proceedings, and his lack of any other regulatory history or any criminal history at all. The Tribunal ordered that the respondent be reprimanded, complete specified education within six months, and that the immediate registration action be set aside. No order as to costs was made.

Orders