Health Ombudsman v Gebusion - [2021] QCAT 102

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Gebusion [2021] QCAT 102

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

PRINCE HARRY BASS GEBUSION

(respondent)

APPLICATION NO/S:

OCR416-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 March 2021

HEARING DATE:

19 March 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Ms H Barker
Ms J Felton
Mr J McNab

ORDERS:
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. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.

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 for a period of two years.

5. Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of another state or territory of Australia.

6. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman (effective from 1 June 2018 and varied on 23 April 2020) is set aside.

7. Each party must bear the party’s own costs of the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent was convicted of sexually assaulting a patient and sentenced to a suspended term of imprisonment – where the Health Ombudsman took immediate registration action to restrict and later suspend the respondent’s registration – whether the respondent’s conduct should be characterised as professional misconduct – what sanction should be imposed – length of preclusion from practice – whether the Tribunal should make a prohibition order – scope of prohibition order

Health Ombudsman Act 2013 (Qld), s 58, s 62, s 103(1)(a), s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 137

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

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Ombudsman v Arora [2019] QCAT 200
Health Ombudsman v Mutasa [2019] QCAT 315
Medical Board of Australia v Thomas [2021] VCAT 229

Pharmacy Board of Australia v Tan [2016] VCAT 1653

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

B Mumford instructed by Hall Payne Lawyers

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Prince Harry Bass Gebusion (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
The applicant alleges that the respondent has…

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 102
Decision Date: 29 March 2021

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against Gebusion, a registered nurse, following his conviction for sexually assaulting a patient. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT), which was tasked with determining whether Gebusion’s conduct constituted professional misconduct under the Health Ombudsman Act 2013 (Qld) and, if so, what sanction should be imposed. The Tribunal also considered the appropriate length of time Gebusion should be precluded from practice and whether it should make a prohibition order, and if so, what the scope of such an order should be.

The primary legal issue before the Tribunal was whether Gebusion’s conduct, as established by his criminal conviction, amounted to professional misconduct under the Act. The Tribunal needed to assess the seriousness of the offence, the nature of the respondent’s profession, and the impact of his actions on public confidence in the health care system. The Tribunal also considered the appropriate sanction, including whether a prohibition order was warranted and, if so, its scope.

In its decision, the Tribunal found that Gebusion’s conduct did indeed constitute professional misconduct. The Tribunal emphasised the gravity of the offence and the particular breach of trust inherent in the respondent’s role as a nurse. The Tribunal was satisfied that the appropriate sanction was to cancel Gebusion’s registration and disqualify him from applying for registration for two years. The Tribunal also imposed a prohibition order, preventing Gebusion from providing any health service until he obtained registration under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of another state or territory of Australia. The Tribunal set aside the immediate registration action imposed by the Health Ombudsman, which had been effective since June 2018.

The Tribunal ordered that each party bear their own costs of the proceeding. This decision highlights the serious consequences that can follow for health care professionals who engage in misconduct, particularly when it involves a breach of trust and harm to patients.

Orders

Orders of the court

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. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.

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 for a period of two years.

5. Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of another state or territory of Australia.

6. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman (effective from 1 June 2018 and varied on 23 April 2020) is set aside.

7. Each party must bear the party’s own costs of the proceeding.

Background

Background to the litigation

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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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