Health Ombudsman v DKM - [2021] QCAT 50

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v DKM [2021] QCAT 50

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

DKM

(respondent)

APPLICATION NO/S:

OCR056-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 February 2021

HEARING DATE:

2 April 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Dr T Chamberlin
Dr E Chew OAM
Dr V Thorley OAM

ORDERS:
1. With respect to charge 1, pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. With respect to charge 2, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.

3. With respect to charge 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.

4. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner indefinitely.

5. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:
PROFESSION AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent held specialist registration as a general practitioner – where the respondent was convicted of a serious sexual offence unrelated to his practice of his health profession – where the respondent was sentenced to a term of imprisonment for his serious sexual offending – where the respondent’s registration as a health practitioner subsequently lapsed and the respondent is currently not registered – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct – what sanction should be imposed for the respondent’s professional misconduct – whether the respondent should be disqualified from applying for registration as a registered health practitioner indefinitely or for a specified period.

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent failed to provide notice of the relevant events of being charged with criminal offences and being convicted of a criminal offence contrary to section 130 of the Health Practitioner Regulation National Law (Queensland) – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct – what, if any, sanction should be imposed for the respondent’s unprofessional conduct.

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent made a false statement in an online application for renewal of his registration as a medical practitioner contrary to section 109 of the Health Practitioner Regulation National Law (Queensland) – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct – what, if any, sanction should be imposed for the respondent’s unprofessional conduct.

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 109, s 130

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 50
Decision Date

CaseChat Overview and Summary

The applicant, the Health Ombudsman, instituted disciplinary proceedings against the respondent, a former registered medical practitioner, in the Queensland Civil and Administrative Tribunal. The respondent was convicted in 2015 of maintaining a sexual relationship with a child under 16 years of age. The applicant referred the respondent to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The referral particularised three charges. Charge 1 related to the respondent’s conviction for the offence of maintaining a sexual relationship with a child under 16 years. Charge 2 alleged breaches of section 130 of the Health Practitioner Regulation National Law (Queensland) (National Law) by failure to notify the Medical Board of Australia (Board) of relevant events of being charged with criminal offences and being convicted of a criminal offence. Charge 3 alleged a false statement on renewal of registration in 2014, contrary to section 109 of the National Law. It was for the Tribunal to determine whether such charges were made out, whether such conduct as was proved should be characterised as professional misconduct or unprofessional conduct and what, if any, sanction should be imposed for such professional misconduct or unprofessional conduct that was proved. The Tribunal was satisfied that the respondent’s conviction for maintaining a sexual relationship with a child under 16 years constituted professional misconduct. The Tribunal was also satisfied that the respondent had behaved in a way that constituted unprofessional conduct in that the respondent failed to notify the Board of being charged with criminal offences and being convicted of a criminal offence and that the respondent made a false statement on renewal of his registration as a medical practitioner. The Tribunal decided, pursuant to section 107(4)(a) of the HO Act, that the respondent was disqualified from applying for registration as a registered health practitioner indefinitely.

Orders