Health Ombudsman v Carter - [2019] QCAT 52

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Carter [2019] QCAT 52

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

TRICA ANNE SHANNON CARTER

(respondent)

APPLICATION NO/S:

OCR127-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 March 2019

HEARING DATE:

13 February 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Professor M Birks
Mr S Lewis
Mr B Taylor

ORDERS:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that 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. Each party is to bear their own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent was an enrolled nurse - where the respondent was employed in an aged care facility - where the respondent was referred for disciplinary proceedings – where the conduct the subject of the referral involved the respondent assaulting an elderly patient – where the respondent was convicted by way of guilty plea to one count of serious assault of a person over 60 – where the respondent has not returned to the profession since the incident – where it is unlikely the respondent will return to the profession - where there is no dispute as to the facts – where the parties made joint submissions on sanction - whether the proposed sanction is appropriate

Criminal Code 1899 (Qld), s 340
Health Ombudsman Act 2013 (Qld), s 103, s 107
Health Practitioner Regulation National Law (Qld), s 5

Health Care Complaints Commission v Gillies [2010] NSW NMT 7
Health Care Complaints Commission v Nicholls [2010] NSW NMT 5

Medical Board of Australia v Jones [2012] QCAT 362

Health Ombudsman v Levick [2017] QCAT 88

Medical Board of Australia v Martin [2013] QCAT 376

Health Ombudsman v Kimpton [2018] QCAT 405
Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627
Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 2

APPEARANCES & REPRESENTATION:

Applicant:

Ms J Tran of the Office of the Health Ombudsman

Respondent:

Ms E Bassingthwaighte of Hall Payne Lawyers

REASONS FOR DECISION

Ms Trica Anne Shannon Carter was a registered health practitioner as defined in s 5 of the Health Practitioner Regulation National Law (Qld) (“National Law”). She held registration as an enrolled nurse from 5 October 2001 until the surrender of her registration on 13 March 2017. She is no longer a registered health practitioner.
The office of the Health Ombudsman received a notification from Ms Carter’s then employer on 19 May 2016. A disciplinary referral was filed in the tribunal pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) on 18 May 2018. On 31 August 2018, Ms Carter filed a response to the disciplinary referral in which she admitted all the allegations it contained. There are no matters in dispute between the parties.…

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 52
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the matter of Health Ombudsman v Carter, the Health Ombudsman referred the respondent, an enrolled nurse employed at an aged care facility, for disciplinary proceedings after an incident where the respondent assaulted an elderly patient. The respondent entered a guilty plea to one count of serious assault of a person over 60. Following the incident, the respondent did not return to the profession and it is unlikely they will do so in the future. Both parties agreed on the facts and jointly submitted on the appropriate sanction.

The central legal issue before the court was whether the proposed sanction was appropriate given the severity of the respondent's conduct. The court had to consider the relevant statutory provisions and the circumstances of the case to determine an appropriate disciplinary measure.

The court found that the respondent's conduct constituted professional misconduct under the Health Ombudsman Act 2013 (Qld). Given the severity of the assault and the respondent's guilty plea, the court was satisfied that a reprimand was an appropriate sanction. The court noted that while the respondent had not returned to the nursing profession, this factor did not necessarily mitigate the seriousness of the assault. The court emphasised that disciplinary proceedings serve to protect the public and maintain professional standards. The joint submissions by both parties on the appropriate sanction also influenced the court's decision. The court ordered a reprimand for the respondent and directed that each party bear their own costs.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that 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. Each party is to bear their own costs of the proceedings.

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 Carter [2019] QCAT 52
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
TRICA ANNE SHANNON CARTER (respondent)
APPLICATION NO/S:	OCR127-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	15 March 2019
HEARING DATE:	13 February 2019
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President Assisted by: Professor M Birks Mr S Lewis Mr B Taylor
ORDERS:	1. Pursuant to s 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal finds that 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. Each party is to bear their own costs of the proceedings.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent was an enrolled nurse - where the respondent was employed in an aged care facility - where the respondent was referred for disciplinary proceedings – where the conduct the subject of the referral involved the respondent assaulting an elderly patient – where the respondent was convicted by way of guilty plea to one count of serious assault of a person over 60 – where the respondent has not returned to the profession since the incident – where it is unlikely the respondent will return to the profession - where there is no dispute as to the facts – where the parties made joint submissions on sanction - whether the proposed sanction is appropriate Criminal Code 1899 (Qld), s 340 Health Ombudsman Act 2013 (Qld), s 103, s 107 Health Practitioner Regulation National Law (Qld), s 5 Health Care Complaints Commission v Gillies [2010] NSW NMT 7 Health Care Complaints Commission v Nicholls [2010] NSW NMT 5 Medical Board of Australia v Jones [2012] QCAT 362 Health Ombudsman v Levick [2017] QCAT 88 Medical Board of Australia v Martin [2013] QCAT 376 Health Ombudsman v Kimpton [2018] QCAT 405 Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627 Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 2
APPEARANCES & REPRESENTATION:
Applicant:	Ms J Tran of the Office of the Health Ombudsman
Respondent:	Ms E Bassingthwaighte of Hall Payne Lawyers