QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Brennan [2024] QCAT 466
PARTIES:
HEALTH OMBUDSMAN (applicant)
v
JEANETTE BRENNAN (respondent)
APPLICATION NO/S:
OCR158-23
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
23 September 2024 (ex tempore)
HEARING DATE:
23 September 2024
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Dick
Assisted by:
Mr S Brimstone
Mr M Halliday
Dr A QuinnORDERS:
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in the form of Annexure A to this decision.
4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by this decision.
5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is six (6) months.
6. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended from 21 October 2024 until 29 March 2025.
7. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman on 30 May 2023 is set aside on and from 21 October 2024.
CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — PSYCHOLOGISTS — where the respondent was convicted of falsely obtaining money from Medicare — whether the respondent’s practising registration should be suspended — whether the Fleischmann principle relates to suspended sentences — whether the conduct constitutes professional misconduct — where conditions are imposed on the respondent’s registration — reprimand
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Council for the Regulation of Health Care Professionals v General Dental Council and Anor [2005] EWHC 87
Health Ombudsman v ANP [2022] QCAT 6
Health Ombudsman v Harirchian [2021] QCA 141
Health Ombudsman v ICN [2024] QCAT 246
Health Ombudsman v Kennedy [2019] QCAT 319
Health Ombudsman v OOD [2021] QCAT 388
Health Ombudsman v Saurels [2021] QCAT 264
Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1
Psychology Board of Australia v Nguyen [2011] VCAT 2437
APPEARANCES & REPRESENTATION:
Applicant:
B Scarrabelotti, Legal Officer of the Office of the Health Ombudsman
Respondent:
D Riggall, solicitor of Thynne & Macartney Lawyers
REASONS FOR DECISION
This is a referral to the Tribunal in respect of conduct by the respondent which the applicant says is professional misconduct. The respondent does not disagree with that categorisation.
The conduct the subject of the referral
As per the Statement of Agreed and Disputed Facts (‘SOADF’):
Between 1 December 2015 and 4 May 2017, the respondent submitted 1,381 ‘bulk-bill’ claims to Medicare, in which she represented that she had rendered…
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- Case
- [2024] QCAT 466
- Decision Date
CaseChat Overview and Summary
The tribunal found that Mr. Brennan’s conduct did indeed constitute professional misconduct, as it involved dishonesty and deception in obtaining payments from Medicare. The tribunal also concluded that the Fleischmann principle, which generally requires that a person be convicted before their registration can be suspended, did not apply to the imposition of conditions on registration. The principle was considered relevant to outright suspension, not to the imposition of conditions. Consequently, the tribunal decided that conditions should be imposed on Mr. Brennan’s registration, including a suspension from 21 October 2024 until 29 March 2025, and a reprimand. The tribunal set aside the immediate suspension imposed by the Health Ombudsman, replacing it with the conditions outlined in the decision.
In light of the findings, the tribunal imposed specific conditions on Mr. Brennan’s registration, which included a formal reprimand and a suspension period. These conditions were designed to safeguard public interest and ensure that Mr. Brennan’s future practice adhered to professional standards. The tribunal also set a review period for these conditions to be reassessed after six months. The immediate suspension imposed by the Health Ombudsman was set aside, with the new conditions taking effect from 21 October 2024. This decision ensured that Mr. Brennan’s registration would be subject to stringent oversight while also providing a pathway for potential reinstatement following the review period.
Orders
Orders of the court
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in the form of Annexure A to this decision.
4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by this decision.
5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is six (6) months.
6. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended from 21 October 2024 until 29 March 2025.
7. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman on 30 May 2023 is set aside on and from 21 October 2024.
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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