Health Ombudsman v Bailey - [2020] QCAT 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Bailey [2020] QCAT 161

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

CAROL-ANN LOUISE BAILEY

(respondent)

APPLICATION NO/S:

OCR168-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC, assisted by Dr K Forrester, Ms C Elliot and Mr S Lewis

ORDERS:
1.   The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.

2.   The Tribunal reprimands the respondent.

3.   The parties bear their own costs of this proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – stealing prescription medication from employer – improper use of personal information – practitioner lost employment and not worked for over two years – insight and remorse – relevant medical issues – respondent reprimanded.

Health Ombudsman Act 2013 s 103(1)(a), s 104

Attorney-General v Bax [1999] 2 Qd R 9
Health Ombudsman v Hardy [2018] QCAT 473
Health Ombudsman v Jamieson [2017] QCAT 172
Health Ombudsman v Macdonald [2016] QCAT 473
Health Ombudsman v Mullins [2019] QCAT 339
Health Ombudsman v SNA [2019] QCAT 328
Medical Board of Australia v Blomeley [2018] QCAT 163
Medical Board of Australia v Martin [2013] QCAT 376

REPRESENTATION:

Applicant:

Office of the Health Ombudsman

Respondent:

Hall Payne Lawyers.

APPEARANCES:

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

This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with that Act, I am sitting with assessors Dr Forrester, Ms Elliot and Mr Lewis.[1]
[1]Health Ombudsman Act 2013 s 126; see s 127 for their function.
The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that while the respondent was registered she engaged in professional misconduct, in that she took a small quantity of pain killing medication from her employer.
The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct. The parties have provided written submissions to the Tribunal,[2] and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
[2]The respondent has also filed an affidavit, signed on 31 January 2020.
The Tribunal accepts the facts set out in the agreed statement of facts. They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1966 and is now 54. She was first registered as a Registered Nurse in 1987. At the relevant time she was employed as a Registered Nurse at a hospital,…

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: [2020] QCAT 161
Decision Date: 22 May 2020

CaseChat Overview and Summary

In this matter, the Health Ombudsman brought proceedings against the respondent, a registered nurse, alleging professional misconduct. The dispute reached the Tribunal, which was tasked with determining whether the respondent's conduct warranted disciplinary action. The central allegations involved the theft of prescription medication from the respondent's employer and the improper use of personal information. Following an investigation, the respondent lost their employment and has not worked as a nurse for over two years. The Tribunal was required to consider the extent of the respondent's insight and remorse, as well as relevant medical issues, in reaching its decision.

The primary legal issue before the Tribunal was whether the respondent's actions constituted professional misconduct under the relevant legislation. The Tribunal needed to assess the gravity of the respondent's conduct, taking into account the theft of prescription medication and the misuse of personal information. Additionally, the Tribunal had to evaluate the respondent's insight and remorse, and the impact of any relevant medical issues on the respondent's conduct. The outcome of this assessment would determine whether the respondent's registration as a nurse should be subject to disciplinary action.

After considering the evidence and arguments presented, the Tribunal concluded that the respondent's conduct did constitute professional misconduct. The Tribunal found that the theft of prescription medication and the improper use of personal information were serious breaches of professional standards. However, the Tribunal also acknowledged the respondent's insight and remorse, as well as the impact of relevant medical issues on their conduct. Balancing these factors, the Tribunal decided that a reprimand was the appropriate disciplinary measure. The Tribunal further ordered that the parties bear their own costs of the proceeding.

The Tribunal's final orders were that the respondent behaved in a way that constituted professional misconduct, that the respondent be reprimanded, and that the parties bear their own costs of the proceeding. This decision highlights the importance of maintaining professional standards in the healthcare sector and the consequences that may arise from breaches of those standards.

Orders

Orders of the court

1. The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.

2. The Tribunal reprimands the respondent.

3. The parties bear their own costs of this proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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