Health Ombudsman v Gillespie - [2021] QCAT 54

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Gillespie [2021] QCAT 54

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

DONALD ANTHONY GILLESPIE

(respondent)

APPLICATION NO/S:

OCR139-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 February 2021 (ex tempore)

HEARING DATE:

23 February 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Harriet Barker
Ms Sharyn Hopkins

Mr Michael Halliday

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. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the respondent supplied temazepam to a 14 year old boy – whether such conduct should be characterised as professional misconduct –– what sanction should be imposed for professional misconduct – whether the Tribunal has power to make an order about the length of time a reprimand will remain recorded on the register – whether the Tribunal should make a recommendation as to the length of time a reprimand will remain recorded on the register

Health (Drugs and Poisons) Regulation 1996.

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5, s 196, s 224, s 225, s 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 100

Legal Services Commissioner v McLeod [2020] QCAT 371

Medical Board of Australia v Kyaw [2016] QCAT 34

Pharmacy Board of Australia v Tavakol [2014] QCAT 112

APPEARANCES & REPRESENTATION:

Applicant:

L Nixon, Solicitor, Turks Legal

Respondent:

E Bassingthwaighte, Solicitor, Hall Payne Lawyers

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Donald Anthony Gillespie (respondent) pursuant to sections 103 and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The referral alleges conduct by the respondent by providing temazepam to B, a 14 year old boy, outside of a health care setting, in circumstances where he knew B to be vulnerable. The parties have reached agreement as to the facts constituting the admitted conduct, that the conduct should be characterised as professional misconduct, and are agreed that an appropriate sanction consists of the respondent being reprimanded. There is an issue in dispute as to whether or not the Tribunal should further order the period during which a reprimand be recorded in the Register.
The respondent is 37 years of age and was aged 31 at the time of the conduct the subject of the referral. He has been registered to practice as a registered nurse since 10 March 2009. He has not previously been the subject of a complaint regarding his professional practice or disciplinary proceedings.

Background

The respondent…

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 54
Decision Date

CaseChat Overview and Summary

The case of Health Ombudsman v Gillespie involved a referral by the Director of Proceedings on behalf of the Health Ombudsman against Donald Anthony Gillespie, a registered nurse, for providing temazepam to a 14 year old boy, B, outside of a health care setting, in circumstances where Gillespie knew B to be vulnerable. The parties agreed on the facts and that the conduct should be characterised as professional misconduct, with an appropriate sanction being a reprimand. The dispute was whether the Tribunal should order the length of time a reprimand would remain recorded on the register. The Queensland Civil and Administrative Tribunal (QCAT) found that Gillespie's conduct constituted professional misconduct as it was substantially below the standard reasonably expected of a registered health practitioner of equivalent level of training or experience. The Tribunal accepted the submissions of both parties that an appropriate sanction was a reprimand. However, the Tribunal did not have the power to make an order about the length of time a reprimand would remain recorded on the register, as this was a responsibility of the National Board pursuant to the National Law. The Tribunal concluded that making such an order would be ultra vires.

The final orders of the Tribunal were that Gillespie had behaved in a way that constituted professional misconduct, that he was reprimanded, and that each party bear their own costs of the proceedings. The decision highlights the importance of maintaining professional boundaries and the serious consequences that can result from breaching those boundaries.

Orders