Health Ombudsman v Chalmers - [2023] QCAT 96

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Chalmers [2023] QCAT 96

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MARK DAVID CHALMERS

(respondent)

APPLICATION NO/S:

OCR024-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 February 2023 (ex tempore)

HEARING DATE:

1 February 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D Reid

Assisted by:

Ms M Barnett
Dr K E Forrester
Mr M Halliday

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the conduct of the respondent in allegation 1 constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;

3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of six years;

4. Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing a health service in a paid or unpaid capacity in a clinical or non-clinical capacity until such time as he obtains registration as a health practitioner; and

5. No order is made as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent plead guilty and was convicted of three offences of indecent treatment of an eight to nine-year-old girl – where the respondent was a registered nurse at the time of the offences – where the respondent has not sought rehabilitation – whether the respondent engaged in professional misconduct – whether the respondent should be reprimanded – whether the respondent should be disqualified from registration as a nurse – whether the respondent should be prohibited from providing health services

Health Ombudsman Act 2013 (Qld) ss 170, 173A

Health Practitioner Regulation National Law Act 2009 (Qld) sch (‘Health Practitioner Regulation National Law’)

Director of Proceedings on Behalf of the Health Ombudsman v Harish Shetty [2020] QCAT 143

Medical Board of Queensland v DAP [2008] QCA 44

APPEARANCES & REPRESENTATION:

Applicant:

Ms N Townsend, Legal Officer for the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

The Director of Proceedings on behalf of the Health Ombudsman seeks the following Orders:
(a)a finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act[1];
(b)an order pursuant to section 173A of the Health Ombudsman Act[2] that the respondent is reprimanded;
(c)an order pursuant to section 107(4)(a) of the Health Ombudsman Act[3] that the respondent is disqualified from applying for registration as a registered health practitioner for a period of between five and six years;
(d)an order pursuant to section 107(4)(b)(i) of the Health Ombudsman Act[4] that the respondent is prohibited from providing health service in a paid or unpaid capacity, in a clinical or non-clinical capacity, until such time as he obtains registration as a health practitioner.
[1]Health Ombudsman Act 2013 (Qld), s 107(2)(b)(iii).
[2] Ibid, s 173A.
[3]…

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: [2023] QCAT 96
Decision Date

CaseChat Overview and Summary

The Health Ombudsman, represented by Ms N Townsend, sought disciplinary action against Mark David Chalmers, who was a registered nurse at the time of his offending. The applicant sought a finding that the respondent's conduct constituted professional misconduct, a reprimand, a six-year disqualification from applying for registration as a health practitioner, and a prohibition on providing health services until registration was obtained. Chalmers, who was self-represented, did not oppose the application. Chalmers was convicted of three offences of indecent treatment of an eight to nine-year-old girl, a close family friend, between 2019 and 2020. The offences involved the respondent having the child masturbate him, and on two occasions, he ejaculated on her hand. He also placed his hand on the child's vagina and rubbed that area on two occasions. The respondent did not seek rehabilitation and there was no evidence to suggest that he would not reoffend. The Tribunal found that the respondent's conduct constituted professional misconduct and disqualified him from applying for registration as a registered health practitioner for six years. The Tribunal also prohibited him from providing health services in a paid or unpaid capacity in a clinical or non-clinical capacity until he obtained registration as a health practitioner. No order was made as to costs.
The Tribunal concluded that the respondent's offending was appalling and grossly inconsistent with the public expectations of a nurse. The purpose of the legislation was to ensure the safety of the public, and it was improbable that he would ever overcome the reluctance of any tribunal to allow his re-admission. The Tribunal noted that the respondent had not sought rehabilitation and that there was no evidence to suggest that he would not reoffend. The Tribunal also noted that the respondent was 64 years of age and that it was inherently unlikely that he would seek to be re-admitted into the nursing profession. The Tribunal found that a disqualification period of six years was appropriate and consistent with the comparative cases on which the applicant relied. The Tribunal also noted that the respondent had made no submissions and had appeared only by video link.

Orders