Health Ombudsman v Dne - [2022] QCAT 269

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v DNE [2022] QCAT 269

PARTIES:

director of proceedings on behalf od the health ombudsman

(applicant)

v

DNE

(respondent)

APPLICATION NO/S:

OCR254-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 July 2022 (ex tempore)

HEARING DATE:

13 July 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Mr S Lewis

Ms A Blair

Ms N Alexander

ORDERS:

1. The conduct the subject of allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).

2. The conduct the subject of allegation 2 constitutes unprofessional conduct, pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld).

3. The respondent is reprimanded pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld);

4. The respondent’s registration is cancelled pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld).

5. The respondent is disqualified from applying for registration for a period of three years from today’s date, pursuant to section 107(4)(a) Health Ombudsman Act 2013 (Qld).

6. The immediate registration action is set aside, pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld).

7. The parties bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was conviction of indecent treatment of a child under 16 (under 12, under care) and sentenced 12 month intensive correctional order – where the respondent failed to notify the board of being charged – where the applicant took immediate registration action to suspend the respondent – where the respondent admits the conduct and has fully participated and assisted both the criminal and disciplinary proceedings - where conduct did not occur in his professional capacity as a nurse – where parties largely agree as to sanction – whether there is a need to further prohibit the respondent from providing any health services for a finite period

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law (Queensland) s 5, 41, 130

Craig v Medical Board of South Australia [2001] SASC 196

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v Flute [2021] QCAT 189

Health Ombudsman v Franklin [2021] QCAT 186

Health Ombudsman v GCV [2020] QCAT 30

Medical Board of Australia v Jansz [2011] VCAT 106

Nursing and Midwifery Board of Australia v Burrows [2020] QCAT 164

Osteopathy Board of Australia v Ratliff (Review and Regulation) [2021] VCAT 658

APPEARANCES & REPRESENTATION:

Applicant:

L Burgess, legal officer at the Office of the Health Ombudsman

Respondent:

S Robb, instructed by QNMU Law

REASONS FOR DECISION

At all relevant times, the respondent, was a registered nurse. On the 31st of August 2021, the applicant Director referred a health service complaint to the Tribunal seeking findings that the respondent has behaved in a way that constitutes professional misconduct and the Director seeks disciplinary orders pursuant to section 107 of the Health Ombudsman Act 2013 (Qld) (the Act).
The referral…

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 269
Decision Date

CaseChat Overview and Summary

This matter involved a Health Ombudsman's proceedings against a registered nurse, who was found guilty of indecent treatment of a child under the age of 16. The respondent was also found guilty of failing to notify the board of his criminal charge. The case was heard in the Queensland Civil and Administrative Tribunal. The primary issue for the court was whether the respondent's conduct warranted disciplinary action under the National Law. The court had to consider whether the respondent's actions were professional misconduct or unprofessional conduct, as defined in the National Law, and whether they were inconsistent with the respondent being a fit and proper person to hold registration in the profession. The court also had to consider whether the respondent's failure to notify the board of his criminal charge amounted to misconduct.

The court found that the respondent's conduct was indeed professional misconduct and unprofessional conduct, as it was substantially below the standard reasonably expected of a registered health practitioner. The court also found that the respondent's failure to notify the board of his criminal charge amounted to misconduct. The court held that the respondent's actions were inconsistent with him being a fit and proper person to hold registration in the profession. The court found that the respondent's attraction to children and his belief that they were "clean and tidy" and "not dirty, like adults" demonstrated a lack of professional judgment and a potential risk to children in his care. The court also noted that the respondent's actions had a significant impact on the child victim, who was in his care at the time of the offending.

The court ordered that the respondent's registration as a registered nurse be cancelled. The court also made a non-publication order prohibiting the identification of the respondent's name and any material that could lead to the identification of the child victim. The court considered the need for transparency and accountability in cases of this nature, but also recognised the potential harm that could come from identifying the child victim. The court held that the respondent's misconduct was serious enough to warrant the cancellation of his registration and the protection of the child victim's identity.

Orders

Orders of the court

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Background

Background to the litigation

It should also be noted that a non-publication order was made on the 5th of October 2021 by his Honour Judge Allen QC, necessarily prohibiting the publication of any material from the Tribunal that could lead to the identification of the child victim. As these reasons will disclose, that order covers the prohibition of the identification of the respondent’s name and despite the need for transparency and accountability in cases of this nature, the publication of his identity may identify the child which, in itself, constitutes an offence under Queensland law.Background The respondent is 30 years old. He obtained a Bachelor of Nursing from a University in 2017. He was first granted registration as a registered nurse by the Board in 2018. At the relevant time, the practitioner was employed as a registered nurse at a Hospital in the cardiac unit. He has no prior criminal or disciplinary history.The Relevant Conduct The parties have filed a statement of agreed facts. The facts of allegation 1 are summarised appropriately in Ms Burgess’s trial submission. In summary, the respondent resides with his de facto partner and her three year old daughter (the child). He was in a stepfather relationship with the child, having cared for her since she was about three months old. On a particular date, he was home alone with the child and caring for her while his partner was at work. The child was asleep in the master bedroom and the respondent lay down next to her and took off his pants and began to masturbate. The respondent kissed the child’s groin while masturbating. The respondent’s partner returned home early from work to observe the respondent lying naked on the mattress, masturbating with his head between the child’s legs. The respondent attended the local Police Station that day and confessed to the offending. In the interview with the police he explained that he came to engage in the act because it would be “more arousing” and the “orgasm would be better”. He told police he had always found children attractive and “finds them clean and tidy” and “not dirty, like adults”. DNA evidence found the presence of his saliva on the inside of the child’s underwear. Approximately 1 year later, he pleaded guilty to indecent treatment of a child under 16, under 12, under care (domestic violence offence) pursuant to sections 210(1)(a), 210(3), 210(4) and 564(3A) of the Criminal Code. A few weeks thereafter, he was sentenced in the region’s District Court to 12 months imprisonment to be served by way of an intensive corrections order with conditions attached and, as a consequence, a conviction was automatically recorded for the offence. Allegation 2 relates to the respondent’s failure to give notice to the board that he had been charged with the offence which is contrary section 130(1) of the National Law.Characterisation of the Conduct: In considering the appropriate characterisation of the respondent’s conduct in allegation 1, the definitions in section 5 of the National Law are relevant:Professional misconduct, of a registered health practitioner, includes; (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and… (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.Unprofessional conduct of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably expected of the health practitioner by the public or the practitioner’s professional peers, and including;…(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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