Health Ombudsman v Berkeley - [2021] QCAT 179

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Berkeley [2021] QCAT 179

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

GEOFFREY BERKELEY

(respondent)

APPLICATION NO/S:

OCR383-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 May 2021 (ex tempore)

HEARING DATE:

28 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Nadine Archibald
Mr Michael Halliday

Mrs Sharon Ritchey

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the 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 Tribunal reprimands the respondent.

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the Tribunal requires the respondent to pay a fine of $5,000 to the Health Ombudsman with six (6) months to pay.

4. Each party to the proceeding must bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent is a registered podiatrist – whether the respondent’s boundary violations involving a 19 year old patient should be characterised as unprofessional conduct or professional misconduct – what sanction should be imposed – whether the Tribunal should depart from the agreed position of the parties

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Commonwealth v Director, Fair Work and Building Industry Inspectorate (2015) 258 CLR 482

Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167
Health Ombudsman v ORC [2020] QCAT 181
Legal Services Commissioner v McLeod [2020] QCAT 371
Medical Board of Australia v Holding [2014] QCAT 632
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson instructed by the Office of the Health Ombudsman

Respondent:

C Reid instructed by Patrick Murphy Solicitor

REASONS FOR DECISION

Introduction

The Director of Proceedings on behalf of the Health Ombudsman (applicant) has referred a matter regarding Geoffrey Berkeley (respondent) to the Tribunal pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The applicant seeks a finding that the respondent has behaved in a way that constitutes unprofessional conduct and consequently seeks orders for sanction.
There is no dispute between the parties as to the relevant facts of the matter alleged to constitute the conduct. Although some matters in a statement of agreed and disputed facts are disputed by the respondent, the applicant submits that such factual dispute does not require a resolution by the Tribunal and, for that reason, the Tribunal will not have regard to those factual matters disputed by the respondent but will instead have regard only to those agreed matters in the statement of agreed and disputed facts.
The parties are also agreed as to the appropriate characterisation of…

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: [2021] QCAT 179
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) considered a case brought by the Health Ombudsman against Geoffrey Berkeley, a registered podiatrist, regarding allegations of professional misconduct involving a 19-year-old patient. The Tribunal was required to decide whether Berkeley's conduct constituted unprofessional conduct or professional misconduct, and if so, what appropriate sanctions should be imposed. The parties agreed that the conduct should be characterised as unprofessional conduct and that a reprimand would be an appropriate sanction. However, the Tribunal needed to determine whether it should accept this agreed position or impose a more severe penalty.

The Tribunal found that Berkeley's conduct involved a significant breach of professional boundaries, as he initiated inappropriate text message exchanges and met with the patient outside of their professional relationship. The Tribunal concluded that the conduct amounted to professional misconduct, as it was a considerable departure from the standard reasonably expected of a registered podiatrist. The Tribunal took into account the mitigating factors, such as Berkeley's lack of prior disciplinary or criminal history, his cooperation during the proceedings, and his completion of education on professional boundaries. However, the Tribunal decided that a reprimand alone would not adequately address the purposes of sanction, which include maintaining professional standards, preserving public confidence in the profession, and deterring the respondent and other health practitioners from engaging in similar conduct.

As a result, the Tribunal decided to reprimand Berkeley and impose a fine of $5,000, payable within six months. The Tribunal also ordered that each party bear their own costs for the proceeding. The decision highlights the importance of maintaining professional boundaries and the potential consequences for health practitioners who engage in conduct that breaches these boundaries.

Orders