Health Ombudsman v Choi - [2022] QCAT 268

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Choi [2022] QCAT 268

PARTIES:

office of the director of proceedings on behalf of the Health Ombudsman

(applicant)

v

Jay youngjin choi

(respondent)

APPLICATION NO/S:

OCR252-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 June 2022 (ex tempore)

HEARING DATE:

8 June 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Jill Feeney
Mrs Patricia Hall

Mr Mark Lock

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides 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 respondent is reprimanded.

3. Each party must bear their own costs in these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – DISCIPLINARY PROCEEDINGS – PHARMACIST – where respondent as an employed pharmacist became addicted to hypnotics and then used his position to steal boxes of Stilnox form his employer – where respondent has a health impairment which underpins his misconduct – where respondent gave undertaking to Board not to practice and reverted to non-practising registration – where respondent used his knowledge of the profession to attempt to obtain unlawfully a box of Stilnox – where respondent failed to notify Board of being charged and convicted – where respondent has not provided up to date medical or personal information concerning his health impairment – where respondent has been out of practice for a number of years – where he will have to convince the Board that he is fit to practice if he applies for registration – where respondent seeks to have the Tribunal recommend to the Board that a reprimand be removed at a certain time

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law (Qld) (National Law) s 5, 130

Health Ombudsman v Antley [2016] QCAT 472

Health Ombudsman v Bassmann [2020] QCAT 395

Health Ombudsman v Blay [2019] QCAT 346

Health Ombudsman v DKJ [2020] QCAT 268

Health Ombudsman v Gillespie [2021] QCAT 54

Health Ombudsman v HNH [2021] QCAT 235

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The Tribunal has before it two Health Service complaints filed by the Applicant Director concerning the conduct of the respondent, a registered pharmacist at the time of the conduct the subject of the first referral and registered as a non-practicing pharmacist at the time of the second referral.
The first referral relates to the respondent misappropriating Zolpidem (Stilnox) between November 2018 and January 2019 from the pharmacy at which he was then employed.
On 11 January 2019, his theft of the drug was captured by the pharmacy’s CCTV cameras, which led to his convictions for one charge of stealing as a servant and one charge of unlawful possession of restricted drugs. The respondent failed to give written notification to the National Board of…

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: [2022] QCAT 268
Decision Date

CaseChat Overview and Summary

The matter of Health Ombudsman v Choi was heard by the Queensland Civil and Administrative Tribunal. The applicant, the Office of the Director of Proceedings on behalf of the Health Ombudsman, brought the case against the respondent, Jay Youngjin Choi, a pharmacist who had been found guilty of stealing medication from his workplace and attempting to obtain it fraudulently at a later date. The Tribunal had to decide whether the respondent's conduct constituted professional misconduct and, if so, what the appropriate sanction should be.

The Tribunal found that the respondent's conduct, including stealing medication and attempting to obtain it fraudulently, constituted professional misconduct. The Tribunal also considered the respondent's health impairment, which was a contributing factor to his misconduct. The Tribunal concluded that the respondent's conduct was serious and persistent, and that it was substantially below the standard expected of a registered health practitioner.

In determining the appropriate sanction, the Tribunal considered factors such as the nature and seriousness of the misconduct, insight and remorse shown by the respondent, the need for specific and general deterrence, evidence of rehabilitation, and the respondent's health impairment. The Tribunal decided that a reprimand was the appropriate sanction in this case, as it would serve to protect the public and deter other practitioners from engaging in similar conduct. The Tribunal also noted that the respondent had voluntarily spent a significant period away from practice due to his health.

The Tribunal rejected the respondent's submission that the reprimand should be lifted earlier than the standard three-year period, stating that it did not have the power to set an earlier publication end date for a reprimand on the register. The Tribunal did, however, express the view that the Board may consider lifting the reprimand earlier, taking into account the respondent's health impairment and the steps he has taken to address it.

In conclusion, the Tribunal found that the respondent had behaved in a way that constituted professional misconduct and decided that the appropriate sanction was a reprimand. Each party was ordered to bear their own costs of the proceedings.

Orders