Health Ombudsman v Bricknell - [2019] QCAT 340

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Bricknell [2019] QCAT 340

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

CARA JANE BRICKNELL

(respondent)

APPLICATION NO/S:

OCR175-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 October 2019 (ex tempore) and further order and reasons on 15 November 2019

HEARING DATE:

18 October 2019

HEARD AT:

Brisbane

DECISION OF:

Allen QC DCJ, Deputy President

Assisted by:
Mr S Brimstone
Ms C Elliott
Dr N French

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)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled;

4.   Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal disqualifies the respondent from applying from registration for a period of two years; and

5.   Pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding to be agreed or assessed.

6.   The non-publication orders made by the Tribunal on 21 August 2018 are amended by the deletion of the words, “; and c. any order made or reasons given by the tribunal” in order 1.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the applicant instituted disciplinary proceedings against the respondent – where the conduct the subject of the referral involved the respondent commencing a personal relationship with a patient – where the respondent neither ceased the treating relationship nor referred the patient to another practitioner after the commencement of the personal relationship – where the respondent and the patient married and had two children – where the relationship subsequently ended – where the respondent initially denied the existence of a treating relationship – where the respondent eventually admitted the existence of a treating relationship when faced with overwhelming evidence – where the respondent holds registration – where the respondent submits that a period of suspension of 3 months with the imposition of conditions is an appropriate sanction – where the applicant submits that the respondent’s registration ought to be suspended for at least 2 years – whether the Tribunal ought to suspend or cancel the respondent’s registration

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 102

Craig v Medical Board of South Australia [2001] 79 SASR 545
Nursing & Midwifery Board v Hogan [2018] TASHPT 3
Psychology Board v Garcia [2015] VCAT 128
Psychology Board of Australia v Popovski [2019] VCAT 155.
Psychology Board of Australia v Shahinper [2016] QCAT 259
Psychology Board of Australia v Wakelin [2014] QCAT 516
Psychology Board of Australia v Wakelin (No 2) [2014] QCAT 553
Shahinper v Psychology Board of Australia [2017] QCA…

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 340
Decision Date: 18 October 2019 (ex tempore) and further order and reasons on 15 November 2019

CaseChat Overview and Summary

In Health Ombudsman v Bricknell, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to decide whether the respondent, a registered psychologist, should face disciplinary action following allegations of professional misconduct. The Health Ombudsman brought proceedings against the respondent, alleging that he had commenced a personal relationship with a patient during a treatment relationship, failed to terminate the treatment relationship or refer the patient to another practitioner, and subsequently married the patient, with whom he had two children. The relationship eventually ended, and the respondent denied the existence of a treating relationship until confronted with substantial evidence.

The Tribunal was tasked with determining whether the respondent's conduct constituted professional misconduct and, if so, what the appropriate disciplinary action should be. The legal issues encompassed whether the respondent's actions amounted to professional misconduct under the Health Ombudsman Act 2013 (Qld), and if so, what sanction, if any, should be imposed. The Tribunal also had to consider the submissions made by both the applicant and the respondent regarding the appropriate length of suspension or cancellation of registration.

In its decision, the Tribunal found that the respondent's conduct constituted professional misconduct, warranting disciplinary action. The Tribunal reprimanded the respondent and cancelled his registration. It also disqualified him from applying for re-registration for two years. The Tribunal rejected the respondent's submission that a three-month suspension with conditions was an appropriate sanction, opting instead for a more severe penalty. The Tribunal ordered the respondent to pay the applicant's costs of the proceeding, to be agreed upon or assessed.

The final orders of the Tribunal included a reprimand, the cancellation of the respondent's registration, a two-year disqualification from applying for re-registration, and an order for the respondent to pay the applicant's costs. Additionally, the non-publication orders previously made by the Tribunal were amended to remove a specific clause relating to orders and reasons given by the Tribunal.

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 Tribunal reprimands the respondent;

3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled;

4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal disqualifies the respondent from applying from registration for a period of two years; and

5. Pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding to be agreed or assessed.

6. The non-publication orders made by the Tribunal on 21 August 2018 are amended by the deletion of the words, “; and c. any order made or reasons given by the tribunal” in order 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Bricknell [2019] QCAT 340
PARTIES:	HEALTH OMBUDSMAN
(applicant)
v
CARA JANE BRICKNELL
(respondent)
APPLICATION NO/S:	OCR175-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	18 October 2019 (ex tempore) and further order and reasons on 15 November 2019
HEARING DATE:	18 October 2019
HEARD AT:	Brisbane
DECISION OF:	Allen QC DCJ, Deputy President Assisted by: Mr S Brimstone Ms C Elliott Dr N French
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)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled; 4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal disqualifies the respondent from applying from registration for a period of two years; and 5. Pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding to be agreed or assessed. 6. The non-publication orders made by the Tribunal on 21 August 2018 are amended by the deletion of the words, “; and c. any order made or reasons given by the tribunal” in order 1.**
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the applicant instituted disciplinary proceedings against the respondent – where the conduct the subject of the referral involved the respondent commencing a personal relationship with a patient – where the respondent neither ceased the treating relationship nor referred the patient to another practitioner after the commencement of the personal relationship – where the respondent and the patient married and had two children – where the relationship subsequently ended – where the respondent initially denied the existence of a treating relationship – where the respondent eventually admitted the existence of a treating relationship when faced with overwhelming evidence – where the respondent holds registration – where the respondent submits that a period of suspension of 3 months with the imposition of conditions is an appropriate sanction – where the applicant submits that the respondent’s registration ought to be suspended for at least 2 years – whether the Tribunal ought to suspend or cancel the respondent’s registration 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 102 Craig v Medical Board of South Australia [2001] 79 SASR 545 Nursing & Midwifery Board v Hogan [2018] TASHPT 3 Psychology Board v Garcia [2015] VCAT 128 Psychology Board of Australia v Popovski [2019] VCAT 155. Psychology Board of Australia v Shahinper [2016] QCAT 259 Psychology Board of Australia v Wakelin [2014] QCAT 516 Psychology Board of Australia v Wakelin (No 2) [2014] QCAT 553 Shahinper v Psychology Board of Australia [2017] QCA…