Health Ombudsman v Blay - [2019] QCAT 346

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Blay [2019] QCAT 346

PARTIES: HEALTH OMBUSDMAN

(applicant)

v

JOANNE FRANCIS BLAY

(respondent)

APPLICATION NO/S:

OCR002-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 November 2019 (ex tempore)

HEARING DATE:

6 November 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:
Ms M Barnett
Ms S Hopkins
Professor M Lupton

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 respondent is reprimanded.

3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the following conditions are imposed on the respondent’s registration:

(a)    The practitioner is to undertake and successfully complete a program of education approved by the Nursing and Midwifery Board of Australia and including a reflective practice report in relation to the standards of ethical and professional conduct expected of nurses.

(b)    Within 28 days of the imposition of these conditions, the practitioner must nominate a program of education to the Nursing and Midwifery Board of Australia for its approval.

(c)     The practitioner must complete the education within six months of the notice of the Board’s approval of the program.

(d)    The practitioner must provide the Board with evidence of her successful completion of the above education within one month of her completion of that education.

(e)    The practitioner is to be responsible for meeting any reasonable costs arising from compliance with these conditions.

4. The Tribunal decides that, for the purposes of both sections 125(2)(b) and 127(3)(b) of the National Law, part 7, division 11(2) of the National Law applies.

5.   Each party must bear their own costs of the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant brought disciplinary proceedings against the respondent in relation to academic misconduct – where the academic misconduct involved the respondent submitting falsified documents in the course of further studies she was undertaking in the nursing profession – where the respondent admits the conduct but opposes a finding of professional misconduct – whether the conduct ought to be characterised as professional misconduct

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107,
Health Practitioner Regulation National Law Act 2009, s 5, s 225, s 226

Fittock v Legal Profession Conduct Commissioner (No. 2) [2015] SASCFC 167
Health Care Complaints Commission v Payne [2007] NSWNMT 10
Nursing and Midwifery Board of Australia v Walker [2016] SAHPT 2
Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1
Pharmacy Board of Australia v Hung [2014] QCAT 148

APPEARANCES & REPRESENTATION:

Applicant:

M Price instructed by the Director of Proceedings, on behalf of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) has referred to the Tribunal this matter concerning Joanne Francis…

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: [2019] QCAT 346
Decision Date: 6 November 2019 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman brought disciplinary proceedings against a registered nurse in relation to an incident of academic misconduct. The respondent admitted to submitting falsified documents while undertaking further studies in the nursing profession. The primary issue for the Tribunal was whether the respondent’s conduct constituted professional misconduct. The Tribunal found that the respondent’s conduct did indeed constitute professional misconduct as it involved deceit and dishonesty, which are serious breaches of ethical and professional conduct expected of nurses.

The Tribunal considered the gravity of the offence, the respondent’s admission of the misconduct, and the need to protect the public and maintain the integrity of the nursing profession. The Tribunal held that the respondent’s conduct warranted disciplinary action. The Tribunal imposed a reprimand and ordered the respondent to undertake a program of education approved by the Nursing and Midwifery Board of Australia, which included a reflective practice report. The respondent was required to complete the program within six months and provide evidence of its completion to the Board. The Tribunal also ordered that the respondent bear the reasonable costs arising from compliance with these conditions.

The Tribunal’s decision was based on the need to ensure that the respondent understood the gravity of her actions and to deter similar conduct in the future. The orders imposed were considered proportionate to the seriousness of the misconduct and aimed at rehabilitating the respondent. Each party was ordered to bear their own costs of the proceeding.

Orders

Orders of the court

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 respondent is reprimanded.

3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the following conditions are imposed on the respondent’s registration:

(a) The practitioner is to undertake and successfully complete a program of education approved by the Nursing and Midwifery Board of Australia and including a reflective practice report in relation to the standards of ethical and professional conduct expected of nurses.

(b) Within 28 days of the imposition of these conditions, the practitioner must nominate a program of education to the Nursing and Midwifery Board of Australia for its approval.

(d) The practitioner must provide the Board with evidence of her successful completion of the above education within one month of her completion of that education.

(e) The practitioner is to be responsible for meeting any reasonable costs arising from compliance with these conditions.

4. The Tribunal decides that, for the purposes of both sections 125(2)(b) and 127(3)(b) of the National Law, part 7, division 11(2) of the National Law applies.

5. Each party must bear their own costs of the 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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