Health Ombudsman v Cottam - [2021] QCAT 146

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Cottam [2021] QCAT 146

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

DAVID JACK PETER COTTAM

(respondent)

APPLICATION NO/S:

OCR218-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 May 2021 (ex tempore)

HEARING DATE:

5 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

1. Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.

2. Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.

3. Pursuant to section 73(2)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision on 7 October 2016 to issue an interim prohibition order.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – application for a permanent prohibition order against the respondent – where the respondent is a disability support worker – where the respondent was convicted of one count of attempted carnal knowledge of a person with an impairment of mind, under care – whether the respondent poses a serious risk to persons – whether a permanent prohibition order should be made

Health Ombudsman Act 2013 (Qld), s 8, s 73, s 103, s 104, s 113

Health Ombudsman v Raynor [2021] QCAT 25

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

The Director of Proceedings on behalf of the Health Ombudsman (applicant) has referred a health service complaint against David Jack Peter Cottam (respondent) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The applicant seeks that the Tribunal decide, pursuant to section 113(1) of the HO Act that, because of the respondent’s conduct, he poses a serious risk to persons and that the Tribunal make a prohibition order pursuant to section 113(4) of the HO Act.
The respondent is 27 years old and was 23 at the time of the conduct the subject of the referral. He had no criminal history prior to the conduct which is the subject of the referral.
At the time of the conduct, the respondent was employed as a support worker by a disability care service. The respondent worked at the facility initially on a casual basis from about May 2014 and subsequently on a permanent part-time basis. In his role as a support worker, the respondent provided health services to the residents of the facility which included assistance with medication, showering, dressing, transferring from bed to wheelchair, toileting, incontinence management, menstrual management and attending to other personal care needs. He was thus a “health service provider” and “health practitioner” within the meaning of those terms in schedule 1 and section 8(a)(i) of the HO Act. The respondent was not a registered health practitioner, disability support work not being a health profession pursuant to the Health Practitioner Regulation…

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: [2021] QCAT 146
Decision Date

CaseChat Overview and Summary

The matter in Health Ombudsman v Cottam [2021] QCAT 146 involved a referral by the Health Ombudsman to the Queensland Civil and Administrative Tribunal (QCAT). The Health Ombudsman sought a determination that the respondent, David Jack Peter Cottam, posed a serious risk to persons and that he be permanently prohibited from providing any health service. The respondent, who was a support worker at a disability care service, had been convicted of attempting to have sexual intercourse with a severely disabled patient under his care. The legal issues before the Tribunal were whether the respondent's conduct constituted a serious risk to persons and, if so, whether a permanent prohibition order should be made. The Tribunal found that the respondent's conduct posed a serious risk to persons due to the nature of the risk and the severity of the consequences if the risk were to eventuate. The Tribunal considered the respondent's risk of reoffending, which was assessed as significant, and concluded that a permanent prohibition order was appropriate due to the absence of evidence of treatment and/or prognosis since the assessment by Mr Walkley in March 2018.

The Tribunal, presided over by Judge Allen QC, Deputy President, considered the evidence and submissions presented by the Health Ombudsman and concluded that the respondent's conduct indeed posed a serious risk to persons. The Tribunal noted the significant nature of the risk, the likelihood of it eventuating, and the severity of the consequences if the risk were to eventuate. The Tribunal found that the respondent's risk of reoffending was significant, as assessed by actuarial instruments, and that the risk was not sufficiently ameliorated by dynamic factors such as the completion of a sex offenders treatment program. The Tribunal concluded that a permanent prohibition order was appropriate given the respondent's continuing risk of sexually reoffending and the absence of evidence as to any treatment and/or prognosis since the assessment by Mr Walkley in March 2018. The Tribunal also set aside the decision to issue an interim prohibition order on 7 October 2016.

Orders