Health Ombudsman v Franklin - [2021] QCAT 186

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Franklin [2021] QCAT 186

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

TYSON BRYAN-ANTHONY FRANKLIN

(respondent)

APPLICATION NO/S:

OCR190-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 May 2021 (ex tempore)

HEARING DATE:

28 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Nadine Archibald
Mr Michael Halliday

Mrs Sharon Ritchey

ORDERS:
1. Pursuant to section 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. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the Respondent.

3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of four (4) years.

4. Each party bears their own costs of the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was a registered podiatrist – where the respondent was convicted of offences of accessing child pornography material and possessing child exploitation material – whether such conduct should be characterised as professional misconduct – what sanction should be imposed – what further period of preclusion from practice is required – whether respondent should be further prohibited from providing any health services

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

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Craig v Medical Board of South Australia [2001] 79 SASR 545

Health Ombudsman v Creagh-Scott [2019] QCAT 69
Health Ombudsman v Mak [2019] QCAT 24

Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392

APPEARANCES & REPRESENTATION:

Applicant:

C Lloyd of the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

Introduction

This is a referral of a matter against Tyson Bryan-Anthony Franklin (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct, and orders for sanction.
The respondent is 28 years old and was first registered as a podiatrist on 20 February 2017. The conduct the subject of the referral does not relate to conduct during the course of his practice as a podiatrist but, rather, to the commission of criminal offences relating to child exploitation material. The respondent was 25 years of age at the time of the conduct.
Respondent’s engagement in proceeding
The respondent has not chosen to engage in the proceeding, despite contact from the Office of the Health Ombudsman and their encouragement to do so. He has sent an email to the Tribunal prompted by such contact from the Office of the Health Ombudsman, stating:
To date, I have chosen to remain out of these discussions as I…

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 186
Decision Date

CaseChat Overview and Summary

Tyson Bryan-Anthony Franklin, a registered podiatrist, was referred to the Queensland Civil and Administrative Tribunal by the Health Ombudsman for findings of professional misconduct and orders for sanction. The referral was based on the respondent's conviction for accessing child pornography and possessing child exploitation material. The Health Ombudsman sought a finding of professional misconduct and orders for sanction, including a disqualification from applying for registration as a health practitioner and a prohibition on providing health services until such time as the respondent obtains registration as a podiatrist under the National Law or a corresponding law of a State or Territory of Australia. The respondent did not engage in the proceeding, despite contact from the Office of the Health Ombudsman and their encouragement to do so. The Tribunal found that the respondent's criminal offending constituted professional misconduct. The Tribunal also found that the respondent's serious professional misconduct required denunciation by the Tribunal and, pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimanded the respondent. The Tribunal decided that a total period of preclusion from practice of about six years was an appropriate order for sanction in this matter. Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of four years. The Tribunal did not make an order, pursuant to section 107(4)(b) of the HO Act, prohibiting the respondent from providing any health service until such time as the respondent obtains registration as a podiatrist under the National Law or a corresponding law of a State or Territory of Australia. The Tribunal ordered that each party bear their own costs of the proceeding.

Orders