Health Ombudsman v Atkinson - [2022] QCAT 211

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Atkinson [2022] QCAT 211

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

GLEN PATRICK ATKINSON

(respondent)

APPLICATION NO/S:

OCR353-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 May 2022 (ex tempore)

HEARING DATE:

10 May 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Ms Harriet Barker
Mr Michael Halliday

Ms Barbara Low Soong

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), that 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. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the applicant alleged the respondent registered nurse engaged in an intimate relationship with a patient – where the respondent admitted to a number of telephone calls but denied all other allegations – whether the Tribunal could be satisfied the alleged conduct occurred

EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – where the applicant sought to rely on evidence of patient in signed but unsworn statement – where the applicant showed an intention of the patient to affirm the affidavit – whether the statement could be relied upon by the Tribunal

Evidence Act 1997 (Qld) s 92

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law (Queensland) s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28

Briginshaw v Briginshaw (1938) 60 CLR 336.

Health Ombudsman v Arora [2019] QCAT 200

Health Ombudsman v Gascard [2020] QCAT 264

Health Ombudsman v Hastie [2021] QCAT 59

Health Ombudsman v Rissanen [2020] QCAT 96

Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423

APPEARANCES & REPRESENTATION:

Applicant:

Mr C Templeton, instructed by the Office of the Health Ombudsman

Respondent:

Self-represented, no appearance

REASONS FOR DECISION

This proceeding is concerned with an application by the Health Ombudsman (applicant) seeking certain findings and orders against Glen Patrick Atkinson (respondent).
The relief sought against the respondent was:
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent engaged in conduct that constitutes professional misconduct.
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent be reprimanded.
3. There be no order as to costs.
At the hearing the applicant was represented by Mr Templeton. There was no appearance on behalf of the respondent. That was expected because, apart from a number of unpersuasive blanket denials on his behalf, the respondent made it clear on a number of occasions that he had no intention in engaging in the process.
On 10 May 2022 the Tribunal made the following orders:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), that 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. No order as to costs.

For…

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 211
Decision Date

CaseChat Overview and Summary

In this matter, the Health Ombudsman (applicant) brought an application against Glen Patrick Atkinson (respondent) seeking certain findings and orders against the respondent. The applicant sought the following orders: 1) that the respondent had behaved in a way that constituted professional misconduct, 2) that the respondent be reprimanded, and 3) that no order be made as to costs. The respondent did not appear at the hearing and did not provide any evidence. The Tribunal found that the respondent had engaged in professional misconduct and ordered a reprimand. The Tribunal was satisfied that the evidence of the patient was convincing and that it proved the three allegations made against the respondent. The Tribunal found that the respondent’s conduct involving a woman with serious mental health issues was conduct which fell well below the standard that might reasonably be expected by the public and his peers. The Tribunal also found that the respondent’s conduct was sufficiently serious to warrant a finding of professional misconduct rather than unprofessional conduct. The Tribunal found that a reprimand was warranted and that no order should be made as to costs. The Tribunal's decision was based on the evidence presented and the serious nature of the respondent's conduct. The Tribunal's decision serves as a public denunciation of the respondent’s conduct and a warning to other registered health practitioners of the consequences of engaging in similar conduct.

Orders