Health Ombudsman v Brennan - [2024] QCAT 466

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 Quinn

ORDERS:

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…

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: [2024] QCAT 466
Decision Date: 23 September 2024 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman took action against a psychologist, Mr. Brennan, in the Queensland Civil and Administrative Tribunal. Mr. Brennan was found to have falsely obtained money from Medicare and faced charges related to professional misconduct. The primary legal issue was whether Mr. Brennan’s actions constituted professional misconduct under the Health Ombudsman Act 2013 (Qld) and if the Fleischmann principle applied to suspended sentences in this context. Additionally, the court had to determine whether the respondent’s registration should be suspended and, if so, for how long, and what conditions should be imposed on his registration.

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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