Health Ombudsman v Cja - [2022] QCAT 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v CJA [2022] QCAT 161

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

CJA

(respondent)

APPLICATION NO/S:

OCR160-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 May 2022 (ex tempore)

HEARING DATE:

11 May 2022

HEARD AT:

Brisbane

DECISION OF:
Judicial Member R Jones

Assisted by:

Dr D Rimmer
Dr D Khursandi
Ms A Blair

ORDERS:

1.     Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld) the respondent has behaved in a way that constitutes unprofessional conduct.

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

3.     No order as to costs.

Non-Publication order

Save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency, until further order publication is prohibited, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 section 66(1), of any medical reports about the applicant, and of:

i.           the contents of a document of other thing proceed to the Tribunal;

ii.          any order made or reasons given by the Tribunal;

to the extent that it would identify the respondent, or any member of his family.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent practitioner pleaded guilty to one count of sexual assault and was sentenced to probation and community service, with no conviction re – where the conduct did not occur in his capacity as a medical practitioner – where the respondent expressed genuine remorse – whether a finding of professional misconduct or unprofessional conduct should be made

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent submitted for a non-publication order originally opposed by the applicant – where the respondent put before the tribunal medical evidence supporting the need for the order – where the responded has significant mental health concerns – where the applicant no longer opposes the order - whether a non publication order should be made

Health Ombudsman Act 2013 (Qld) s 107

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Grizini v the Medical Practitioners Board of Victoria [2005] VCAT 826

Health Ombudsman v McAndrew [2021] QCAT 266

Health Ombudsman v Mutasa [2019] QCAT 315

Legal Services Commission and Nguyen [2015] QCAT 211

Legal Services Commission v McLeod [2020] QCAT 371

Medical Board of Australia v Arulanandarajah [2021] VCAT 85

Nursing and Midwifery Board of Australia v Faulkner [2018] QCAT 97

Nursing and Midwifery Board of Australia v Pickett [2021] VCAT 162

Pharmacy Board of Australia v Tan [2016] VCAT 1653

APPEARANCES & REPRESENTATION:

Applicant:

Mr C Llyod, Principal Legal Officer at the Office of the Health Ombudsman

Respondent:

Mr AJ Edwards, counsel instructed by Gilshenan and Luton Legal Practice

REASONS FOR DECISION

This proceeding is concerned with an application brought by the Health Ombudsman (the applicant), seeking certain findings and orders concerning…

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 161
Decision Date

CaseChat Overview and Summary

The case involves the Health Ombudsman, represented by Mr C Lloyd, seeking disciplinary action against a registered medical practitioner, CJA, represented by Mr AJ Edwards. The proceedings centre on an incident where CJA pleaded guilty to sexual assault, which occurred in a nightclub on 14 December 2019. The assault involved a woman with whom CJA had been engaging in consensual activities before she became unconscious. The case focuses on determining whether CJA's conduct constitutes professional misconduct or unprofessional conduct under the Health Ombudsman Act 2013 (Qld), and if so, the appropriate sanctions. The Tribunal was tasked with assessing the nature of CJA's conduct, its connection to his professional activities, and the impact of his mental health condition at the time of the incident.

The key legal issues included whether CJA's conduct constituted professional misconduct or unprofessional conduct, the relevance of his intoxication and mental health issues, and the appropriate sanctions to impose. The Tribunal had to balance the need to protect public safety and maintain professional standards against the personal circumstances of CJA, including his remorse and mental health conditions. The decision also considered the relevance of a non-publication order, which was initially opposed by the Health Ombudsman but later supported due to CJA's significant mental health issues.

The Tribunal concluded that CJA's conduct constituted unprofessional conduct rather than professional misconduct, primarily because there was no connection between the incident and his professional activities. The Tribunal found that while the conduct was regrettable and involved degrees of disgraceful behaviour, it was significantly influenced by CJA's intoxication and mental health issues. The Tribunal noted CJA's remorse, his unblemished record, and the relatively low level of the offending. The Tribunal also considered the impact of a non-publication order, given CJA's ongoing mental health struggles, and concluded that such an order was appropriate.

The Tribunal ordered that CJA's conduct constitutes unprofessional conduct, that he be reprimanded, and that there be no order as to costs. Additionally, a non-publication order was made to protect CJA's privacy and mental health, given the sensitive nature of the case and his ongoing treatment needs. The Tribunal also considered that a period of suspension was not warranted due to CJA's already suspended registration and the negligible risk of reoffending.

Orders