Health Ombudsman v Fletcher (No 2)

This was a disciplinary referral by the applicant, the Health Ombudsman, of proceedings against the respondent, a registered nurse, in respect of professional misconduct. The Tribunal had already found that the respondent's conduct amounted to professional misconduct, and made a number of orders against her, including a reprimand, a cancellation of her registration, and a period of disqualification from registration. The matter then proceeded to a consideration of costs. The question of costs in this matter is governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 100, s 102. Under s 100, the starting point is that there be no order for costs, but there is power in an appropriate case for the Tribunal to depart from that position. The test for when an order for costs can be made is set out in s 102(1): “If the tribunal considers the interests of justice require it to make the order.” The respondent relied on the passage at [33] of his Honour’s judgment in Tamawood Ltd v Paans [2005] 2 Qd R 101, and submitted that the usual position should apply, that there be no order as to costs, and that the interests of justice did not require another order. The respondent had not acted in a way in relation to the proceeding that unnecessarily disadvantaged the applicant, and in the proceeding had largely agreed to the factual allegations made against her. The respondent disputed the characterisation of some of the things that had occurred in the course of bringing the referral to a hearing, and submitted that she had suffered some financial compromise as a result of her suspension. The applicant submitted that there were significant public policy considerations arising from the applicant’s statutory obligations, particularly to protect the health and safety of the public, to promote competent practice, to promote high standards of health service delivery and to maintain public confidence. There were however aspects of the respondent’s conduct in the proceeding that I found to be unreasonable, in that the respondent had given false evidence to the Tribunal, in her explanation for her actions. Initially there was limited cooperation from the respondent in the investigation by the applicant, and the respondent when questioned claimed privilege on a wide basis. As well, the respondent did not put in evidence by affidavit or in chief her version of events, a matter I commented on in the earlier decision. By the time of the hearing however the respondent had agreed to many of factual matters alleged by the applicant and had made an admission of professional misconduct, and cross-examination of most of the witnesses was quite limited. At one stage the respondent was objecting to the admissibility of the surveillance video footage but that was not pursued at the hearing. On the other hand, the respondent was given opportunities to reconsider her position, and did not take them up to any great extent. The hearing occupied two days, and I expect it is reasonable to conclude that it would probably have finished in one day if not opposed; it may have run into two days anyway if defended in a way which did not involve giving false evidence. The respondent was entitled to claim privilege, and cannot be adversely affected by the fact that she did so. Counsel for the respondent in submissions on costs stressed the extent of the cooperation that did occur, and that by the time the matter came to the hearing most of the facts alleged by the applicant in its statement of facts had been agreed, and there is force in that. She also pointed out that the respondent’s amended response was filed in response to an amended referral filed by the applicant on 28 February 2020. She also noted that some of the applicant’s allegations against the respondent were not sustained at the hearing. As to a foreshadowed objection to the evidence of Ms Vale, that was on the basis that the applicant had not disclosed all relevant documents concerning that witness. There was no objection to the admissibility of the video evidence; rather the respondent sought to limit the amount of the extensive volume of raw footage available which went into evidence, and agreed to that which was ultimately tendered. The respondent submitted that she did not rely on an unmeritorious defence, but I do not accept that submission, in view of the finding that the respondent gave false evidence to the Tribunal, in an apparent attempt to minimise the seriousness of her conduct. In the present case the registration of the respondent was suspended not long after the incident in October 2016, and was cancelled by the Tribunal, with a preclusion period imposed. That had an adverse effect on her employment which she lost in August 2017, and thereafter her earnings. She then obtained casual work as a support worker, and her financial position suffered for a period of almost eighteen months. Copies of her tax assessments were put in evidence and show that, although there was a decline in the 2017 financial year, and a further decline in 2019, her position improved from February, and in 2020 her taxable income had largely recovered. The respondent said that she owned with her estranged husband four properties in a provincial area, all of which are mortgaged. He is living in one of them, and she in another while two are rented out. She has to carry most of the mortgage payments, because of his limited income. She also owns herself another property, which is also mortgaged and tenanted. A property settlement has not yet occurred. Overall, her circumstances seem to be reasonably comfortable, and the sort of order I have in mind will not be a hardship to her. I consider that the relevant circumstances in this matter are such that the interests of justice do require that the respondent make some contribution to the applicant’s costs of the proceeding, although limited to the costs of the second day of the hearing. I order that the respondent pay part of the costs of the applicant of and incidental to this proceeding, fixed in the sum of $5,000, such sum to be paid within twenty-eight days from the date of this decision.