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Health Ombudsman v FYJ

Health Ombudsman v FYJ

Case [2022] QCAT 92 1 April 2022

Professional Misconduct

Reprimand

Non-Publication Order

Occupational Regulation

Health Care Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v FYJ [2022] QCAT 92

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

FYJ

(respondent)

APPLICATION NO/S:

OCR302-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 April 2022

HEARING DATE:

1 April 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
Ms H Uren,
Mrs P Hall,
Mr M Lock.

ORDERS:

1.     The Tribunal decides that the conduct of the respondent set out in the referral amounted collectively to professional misconduct.

2.     The respondent is reprimanded.

3. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:

(a)     the contents of any document or thing produced to the Tribunal; and

(b)     the orders made and reasons given by the Tribunal; and

(c)     evidence before the Tribunal

to the extent that it could identify, or lead to the identification of the respondent, any family member of the respondent, any professional colleagues of the respondent, any victim of the respondent's offending, save as ls necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding.

4.     There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – taking scheduled medication from employer – falsifying records – self-medication – professional misconduct – mental health issues – away from professions for over three years – whether further suspension appropriate – whether to make non-publication order

Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104, s 107.

Health Ombudsman v CLT (No 2) [2019] QCAT 379
Health Ombudsman v DeCelis [2019] QCAT 140
Health Ombudsman v FYD [2020] QCAT 168
Health Ombudsman v JSP [2020] QCAT 334
LCK v Health Ombudsman [2020] QCAT 316
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92
Pharmacy Board of Australia v Christie [2016] QCAT 291
Psychology Board of Australia v GA [2014] QCAT 409

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson instructed by the Office of the Health Ombudsman

Respondent:

J A Greggery QC instructed by Purcell Taylor Lawyers

REASONS FOR DECISION

This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104. In accordance with the Act I am sitting with assessors Ms H Uren, Mr M Lock and Mrs P Hall.[1]
[1]Health Ombudsman Act 2013 (Qld) s 126. For their function, see s 127.
The respondent is and was at the relevant times a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant alleges that the respondent engaged in professional misconduct in that, while registered, he took a large quantity of schedule 8 medication from his employer over a period of time.
The parties have provided the Tribunal with a statement of agreed…

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.

Continue reading Health Ombudsman v FYJ

Details

AGLC: Health Ombudsman v FYJ [2022] QCAT 92
Case: [2022] QCAT 92
Decision Date

CaseChat Overview and Summary

In this case, the respondent, a registered pharmacist, was referred to the Tribunal for disciplinary proceedings under the Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104. The applicant alleged that the respondent engaged in professional misconduct by taking a large quantity of schedule 8 medication from his employer over a period of time, falsifying records, and self-medicating. The respondent admitted the facts and the parties provided a statement of agreed facts. The legal issues before the court were whether the respondent's conduct amounted to professional misconduct, and if so, what sanction should be imposed. The court found that the respondent's conduct amounted to professional misconduct and imposed a reprimand. The court also made a non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to avoid endangering the mental health of the respondent. The court found that the respondent had been away from the profession for over three years, which was sufficient sanction, and that any further suspension would be damaging to his mental health and potentially damaging to his rehabilitation.

The respondent, a registered pharmacist, was found to have engaged in professional misconduct by taking a large quantity of schedule 8 medication from his employer over a period of time, falsifying records, and self-medicating. The court found that the respondent's conduct amounted to professional misconduct because it was a serious breach of trust as an employee in a responsible position and of his obligations in relation to the carefully handling of medication in the most dangerous category, which he owed to the community. The court also found that the respondent's conduct was unprofessional and substantially below the standard reasonably expected of a registered health practitioner of his level of training and experience. The court considered a number of factors in deciding on the appropriate sanction, including the health and safety of the public, personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence, insight and remorse on the part of the respondent, and the fitness to practise of the respondent at the time of the hearing. The court found that the respondent had been away from the profession for over three years, which was sufficient sanction, and that any further suspension would be damaging to his mental health and potentially damaging to his rehabilitation. The court also made a non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to avoid endangering the mental health of the respondent. The court found that publication of this matter would risk endangering the mental health of the respondent, and that there was a close association between an aspect of the impairment of the respondent and the relevant conduct. In all the circumstances, the court considered that such an order should be made in this case.

Orders