Health Ombudsman v Brown - [2019] QCAT 218

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Brown [2019] QCAT 218

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

LUKE STEPHEN BROWN

(respondent)

APPLICATION NO/S:

OCR147-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 August 2019 (ex tempore)

HEARING DATE:

7 August 2019

HEARD AT:

Brisbane

DECISION OF:

Allen QC DCJ, Deputy President

Assisted by:
C Ashcroft
J McNab
M Barnett

ORDERS:
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct;

2. pursuant to s 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded; and

3. each party must bear the party’s own costs for the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the applicant instituted disciplinary proceedings against the respondent on a number of bases including that he had been charged with and convicted of various criminal offences, and that he had failed to notify the Nursing and Midwifery Board of Australia of the charges and convictions – where the respondent cooperated in relation to the criminal matters and the disciplinary proceedings – where the facts are agreed – where the applicant submits that the respondent should be reprimanded and suspended from holding registration – where the respondent submits that a reprimand is sufficient to protect the safety of the public – where the respondent was effectively precluded from practising as a registered nurse for approximately four years by the imposition of conditions on his registration – how the Tribunal should deal with this period of preclusion from practise – whether a suspension of registration is appropriate in the circumstances

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law Act 2009 (Qld), s 5, s 109, s 130

Health Ombudsman v Barber [2017] QCAT 431
Health Ombudsman v Hardy [2018] QCAT 416
Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549
Psychology Board of Australia v GA [2014] QCAT 409

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson instructed by the Director of Proceedings, on behalf of the Health Ombudsman

Respondent:

S Robb instructed by Roberts & Kane Solicitors

REASONS FOR DECISION

DEPUTY PRESIDENT: This is a referral of a health service complaint against the respondent by the applicant, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (“HO Act”). The applicant alleges that the respondent registered nurse engaged in professional misconduct by reason of him committing criminal offences unrelated to his practice as a nurse and by failing to notify the Australian Health Practitioner Regulation Agency (AHPRA) of being charged and convicted of offences in contravention of ss 109 and 130 of the Health Practitioner Regulation National Law Act 2009 (“National Law”).
The parties have agreed the relevant facts, including the facts alleged to constitute professional misconduct and jointly submit that the conduct should be characterised as professional…

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 218
Decision Date: 7 August 2019 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman initiated disciplinary proceedings against Mr Brown, a registered nurse, on various grounds including his criminal convictions and failure to notify the Nursing and Midwifery Board of Australia of these convictions. Mr Brown cooperated with both the criminal and disciplinary proceedings. The tribunal was tasked with determining the appropriate disciplinary action against Mr Brown, with the Health Ombudsman seeking a reprimand and suspension, and Mr Brown contending that a reprimand was sufficient. The tribunal needed to consider the effect of the approximately four years during which Mr Brown was effectively barred from practising as a registered nurse due to conditions imposed on his registration, and whether a suspension of registration was warranted under the circumstances.

The tribunal first considered whether Mr Brown's conduct constituted professional misconduct. It found that his criminal convictions and failure to notify the relevant authorities did indeed amount to professional misconduct. The tribunal then turned to the appropriate sanction, weighing the need to protect the public against the circumstances that had effectively precluded Mr Brown from practising for four years. The tribunal concluded that a reprimand was sufficient to address the public interest in this case, given Mr Brown's cooperation and the period of preclusion from practice.

The tribunal issued a reprimand to Mr Brown, finding that this was an appropriate measure to protect the public without unduly penalising Mr Brown for the period during which he was unable to practise. It was determined that a suspension of registration was not necessary in these circumstances. The tribunal also ruled that each party should bear their own costs for the proceedings.

The tribunal's final orders were that Mr Brown was reprimanded for professional misconduct, and that each party was to bear their own costs. The decision highlights the tribunal's approach to balancing the need to protect the public with the circumstances of the individual practitioner.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct;

2. pursuant to s 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded; and

3. each party must bear the party’s own costs for 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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