Health Ombudsman v Barber - [2017] QCAT 431

CITATION:	Health Ombudsman v Barber [2017] QCAT 431
PARTIES:	Health Ombudsman (Applicant)
v
Jamie Benjamin Barber (Respondent)
APPLICATION NUMBER:	OCR123-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	19 April 2017
HEARD AT:	Brisbane
DECISION OF:	Judge Sheridan, Deputy President Assisted by: Ms C Collyer Mr J McNab Mr M Halliday
DELIVERED ON:	13 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. In relation to Charge 1, pursuant to s 107(2)(b)(iii) of the *Health Ombudsman Act* 2013(Qld), the Tribunal finds the Respondent has behaved in a way that constitutes professional misconduct. 2. In relation to Charges 2 and 3, pursuant to s 107(2)(b)(ii) of the *Health Ombudsman Act* 2013(Qld), the Tribunal finds the Respondent has behaved in a way that constitutes unprofessional conduct. 3. Pursuant to s 107(3)(a) of the *Health Ombudsman Act* 2013(Qld), the Respondent is reprimanded. 4. The applicant is to file submissions on costs by 4:00pm on 10 January 2018. 5. The respondent is to file submissions on costs by 4:00pm on 24 January 2018. 6. The applicant is to file submissions in reply, if any, by 4:00pm on 31 January 2018.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the practitioner was charged and convicted of two counts of trafficking cannabis and one count of possessing cannabis – where the practitioner had been charged on the basis of his own admissions – where the practitioner failed to disclose the charges and convictions to the Nursing and Midwifery Board of Australia – where the practitioner failed to declare that he was charged with the criminal offences on his application for registration renewal – where the practitioner admitted to having engaged in professional misconduct – whether the registration of the practitioner should be suspended Health Ombudsman Act 2013 (Qld), s 107 Health Practitioner Regulation National Law (Queensland), s 5 Craig v Medical Board of South Australia (2001) 79 SASR 545, cited Health Care Complaints Commission v Do [2014] NSWCA 307, cited Nursing and Midwifery Board of Australia v Brereton [2011] QCAT 578, distinguished Nursing and Midwifery Board of Australia v Mundy [2012] SAHPT 5, distinguished Nursing and Midwifery Board of Australia v Quinlivan [2011] SAHPT 8, considered Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria Practice Court, Marks J, 19 January 1994), cited Pharmacy Board of Australia v Hung [2014] QCAT 148, cited
APPEARANCES:
APPLICANT:	L Mudge of the Health Ombudsman
RESPONDENT:	C Massy, instructed by Hall Payne Lawyers

REASONS FOR DECISION

Background

On 9 August 2016, the Health Ombudsman referred to the Tribunal disciplinary proceedings against the practitioner, Mr Barber. The referral was made pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The allegations in the referral arose from two separate notifications made to the Health Ombudsman, namely:
a)A written self-notification made by Mr Barber dated 12 January 2015; and
b)
A written notification made on behalf of Mr Barber’s employer,

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: [2017] QCAT 431
Decision Date: 13 December 2017

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, the Health Ombudsman filed proceedings against a registered nurse, Mr Barber, alleging that his registration should be suspended on the basis of his criminal convictions for trafficking and possession of cannabis. The charges stemmed from Mr Barber's own admissions to the police, and he had failed to disclose these charges and subsequent convictions to the Nursing and Midwifery Board of Australia when he applied for his registration renewal. Mr Barber admitted to the professional misconduct charges but disputed the extent of the penalty. The tribunal was required to determine whether the charges constituted professional misconduct and, if so, what the appropriate penalty should be.

The primary legal issue before the tribunal was whether Mr Barber's criminal convictions and subsequent failure to disclose these matters to the Board constituted professional misconduct or unprofessional conduct under the Health Ombudsman Act 2013 (Qld). The tribunal also needed to consider the appropriate penalty for such conduct. The tribunal considered the impact of Mr Barber's criminal conduct on his fitness to practice nursing and the need to protect the public and maintain public confidence in the nursing profession.

The tribunal found that Mr Barber's criminal convictions and failure to disclose them to the Board constituted professional misconduct and unprofessional conduct. It held that Mr Barber's conduct demonstrated a lack of honesty and integrity, which were essential qualities for a registered nurse. The tribunal considered the seriousness of the criminal offences, the impact on Mr Barber's fitness to practice, and the need to maintain public confidence in the nursing profession. It decided that a reprimand was the appropriate penalty, given Mr Barber's admission of misconduct and his otherwise unblemished record. The tribunal also ordered that the parties file submissions on costs within specified timeframes.

Orders

Orders of the court

1. In relation to Charge 1, pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds the Respondent has behaved in a way that constitutes professional misconduct.

2. In relation to Charges 2 and 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds the Respondent has behaved in a way that constitutes unprofessional conduct.

3. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Respondent is reprimanded.

4. The applicant is to file submissions on costs by 4:00pm on 10 January 2018.

5. The respondent is to file submissions on costs by 4:00pm on 24 January 2018.

6. The applicant is to file submissions in reply, if any, by 4:00pm on 31 January 2018.

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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