Health Ombudsman v CJJ - [2020] QCAT 513

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v CJJ [2020] QCAT 513

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

CJJ

(respondent)

APPLICATION NO/S:

OCR333-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 December 2020 (Ex Tempore)

HEARING DATE:

2 December 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Mr Peter Caldwell
Ms Kathleene Dower

Dr Anne Fitzgerald

ORDERS:

1.       The respondent behaved in a way which constituted professional misconduct;

2.       The respondent is reprimanded;

3.       The respondent is prohibited from providing any health service until such time as the respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another State or Territory of Australia; and

4.       There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical radiation practitioner – where the respondent’s registration has been suspended – where the respondent convicted of various fraud and stealing offences – sanctions available to the Tribunal when the respondent is no longer registered – whether a prohibition order should be made pursuant to s 107(4)(b) of the Health Ombudsman Act 2013 (Qld)

Evidence Act 1977 (Qld) s 79.
Health Ombudsman Act 2013 (Qld) s 107(4)(b).
Health Practitioner Regulation National Law (Queensland) ss 1, 5.

Briginshaw v Briginshaw (1938) 60 CLR 336.
Health Ombudsman v ADV [2020] QCAT 364.
Health Ombudsman v Antley [2016] QCAT 472.
Health Ombudsman v Corocher [2020] QCAT 47.
Health Ombudsman v CLT [2019] QCAT 378.
Health Ombudsman v Drinkwater [2020] QCAT 203.
Health Ombudsman v Joy [2020] QCAT 202.
Health Ombudsman v Martin [2020] QCAT 350.

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton of counsel, instructed by the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

The applicant director referred these disciplinary proceedings to the Tribunal on 21 December 2018. The referral contained three allegations, only one of which, allegation 1, is now pursued, for reasons that will become obvious.
Allegation 1 is an allegation that the respondent engaged in professional conduct in that, while holding registration as a medical radiation practitioner, he engaged in professional misconduct within the meaning of section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). On 20 May 2016, he appeared in the Brisbane Magistrates Court and pleaded guilty to 15 charges relating to the stealing, forging and unauthorised filling of prescriptions for morphine and on one occasion obtaining Sertraline without authority. A conviction was recorded for all offences. The Magistrate sentenced the respondent to an 18-month probation order with conditions including one that he submit to such “medical, psychiatric or psychological assessment and treatment as directed by the authorised Corrective Services officer...”.
On 8 November 2016, the respondent appeared in the Brisbane Magistrates Court and pleaded guilty to a number of further criminal charges, 27 in total, also relating to stealing,…

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: [2020] QCAT 513
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to consider allegations of professional misconduct against CJJ, a former medical radiation practitioner, by the Health Ombudsman. CJJ was convicted of multiple fraud and theft offences, including stealing and forging prescription scripts for morphine, while employed at XRadiology in Toowong. The Tribunal heard evidence of CJJ's criminal history, including offences committed while on probation, indicating a pattern of dishonest and unethical behaviour. The Tribunal concluded that CJJ's actions constituted professional misconduct under the Health Practitioner Regulation National Law (Queensland).

The Tribunal considered various sanctions, including a fine, disqualification from applying for registration, and a prohibition on providing health services. Given CJJ's history of offending and lack of recent evidence regarding his current health and insight into his behaviour, the Tribunal determined that a reprimand and a prohibition on providing health services until he obtains registration were appropriate. The Tribunal emphasized that its primary concern was the protection of public health and safety, and the prohibition order would remain in effect until CJJ met the stringent requirements for registration under the National Law. The Tribunal also ordered that there be no order as to costs.

Orders