Health Ombudsman v Gupta - [2022] QCAT 160

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Gupta [2022] QCAT 160

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

Mohit gupta

(respondent)

APPLICATION NO/S:

OCR296-17 and OCR265-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 April 2022 (ex tempore)

HEARING DATE:

21 April 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Dr P Bowden
Dr C Chang
Mr K Murphy

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that 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 respondent is reprimanded.

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), respondent is to pay a fine of $20 000 to Health Ombudsman.

4. The respondent shall pay the Health Ombudsman’s costs of $20 000 as agreed within 3 months of the date of the Tribunal’s order.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY PROCEEDINGS – where the respondent admitted 6 allegations in two consolidated referrals – where the respondent amongst other things failed to develop and/or implement an infection control management plan, failed to take precautions and care to minimise risk of infection control and failed to properly store sterilised instruments – where significant time has elapsed since the allegations – where the respondent was not subject to any conditions at the time of the hearing but had previously had conditions imposed – where parties make joint submissions as to sanction – whether the sanction is appropriate

Health Ombudsman Act 2013 (Qld) s 107,

Health Practitioner Regulation National Law (Qld) s 5

Health Care Complaints Commission v Chan [2017] NSWCATOD 66

Health Care Complaints Commission v Somaey [2021] NSWCATOD 91

Health Care Complaints Commission v Starkenburg [2017] NSWCATOD 22

Health Ombudsman v Veltmeyer [2021] QCAT 77

Medical Board of Australia v Martin [2013] QCAT 376

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

The Tribunal is hearing two health service complaint referrals against the respondent Dr Mohit Gupta. The first referral was filed 20th of December 2017 (the first referral) and, broadly speaking, concerned conduct by the respondent in 2015. This referral had not been resolved by the time of the filing of the second referral on the 31st July 2019 (the second referral), which concerned conduct, generally speaking, in 2016.
By order dated the 14th of April 2019, the Tribunal ordered that the first and second referrals be consolidated and be heard and determined together. Since the second referral, the parties have engaged in detailed and lengthy negotiations concerning the allegations and sanction, and have reached agreement on both issues. The parties have filed what is effectively an agreed statement of facts. The proceedings before the Tribunal proceed on the basis of an amended consolidated referral filed…

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.

Keep reading for free

Create a free CaseChat account to read Health Ombudsman v Gupta and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCAT 160
Decision Date

CaseChat Overview and Summary

The Health Ombudsman filed a case against the respondent, a dentist registered with the Dental Board of Australia, over allegations of infection control failures in his dental practice. The case was heard in a court in Queensland. The Health Ombudsman brought the action based on multiple complaints and notifications about the respondent's failure to adhere to proper infection control practices. These complaints included a mandatory notification from a fellow dental practitioner in June 2015, a notification from a professor in July 2015, and another from the Chief Health Officer of Queensland in December 2016.

The legal issues before the court involved whether the respondent breached the National Law and the PH Act by failing to maintain proper infection control practices in his professional practice. The court needed to determine whether these breaches warranted disciplinary action, including potential suspension or cancellation of the respondent's registration. The court also needed to consider the evidence provided by the notifications and audits, and the respondent's efforts to rectify the issues.

In reaching its decision, the court reviewed the evidence from the notifications, audits, and educational courses the respondent had undertaken. The court found that despite the initial compliance and the respondent's efforts to improve, there were ongoing issues that suggested a systemic failure to maintain proper infection control practices. The court was particularly concerned about the recurring nature of the notifications and the findings from the December 2016 audit. As a result, the court upheld the decision to suspend the respondent's registration, considering it necessary to protect public health and safety.

The court ordered that the respondent's registration remain suspended until further order. This decision was based on the repeated failure to maintain appropriate infection control standards and the ongoing risk to public health. The court emphasised the importance of stringent infection control practices in health care facilities and the responsibility of health practitioners to adhere to these standards.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The allegations contained in both referrals concern failures by the respondent, who is a registered dentist, to maintain proper infection control practices in his professional practice.Background The respondent was born on the 29th of November 1981, so is presently 41 years old. He obtained a Bachelor of Dental Surgery from Kurukshetra University in India in 2004. He was first registered as a dental practitioner on the 1st of June 2009. He is currently registered with the Dental Board of Australia (the Board), holding general registration as a dental practitioner pursuant to the Health Practitioner Regulation National Law (Queensland) (the National Law), and is a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld). His registration is not currently subject to any conditions. At all relevant times he was the sole director of The Smile Designer Pty Ltd (the company), and caused the company to operate a dental practice under the registered business name “Gap Free Smile” (the practice) at Carina in Queensland (now trading as “Care4Teeth”); practised as a dental practitioner at the practice and was the operator of the practice as defined in section 147 of the Public Health Act 2005 (Qld) (the PH Act) (The practice being a health care facility as defined in that Act.) The first complaint which led ultimately to the first referral was by way of a mandatory notification to the Office of the Health Ombudsman (the OHO) on the 23rd of June 2015 by a dental practitioner, Dr A, who was then working at the practice. On the 10th of July 2015, Professor Laurence Walsh from the University of Queensland made a mandatory notification to the OHO in conjunction with the notification made by Dr A on the 23rd of June 2015. Dr A, who had then worked at the practice for approximately three months, had consulted Professor Walsh about his concerns on the 12th of June 2015. As a result of those notifications, the applicant took immediate registration action by imposing conditions on the respondent’s registration, which included the requirement for an independent infection control audit and education program. As a consequence of a number of satisfactory audits undertaken at the practice on the 22nd of September 2015, the 28th of September 2015 and the 22nd of February 2016, and retrospective approval by the applicant of education courses (safe sharp practices and infection controls) undertaken by the respondent in October 2015, the OHO removed the conditions on the 6th of May 2016. On the 22nd of December 2016, the OHO received a mandatory notification from the Chief Health Officer of Queensland concerning the respondent’s infection prevention and control practices based on an audit conducted at the practice on the 19th of December 2016 by Queensland Health. This notification ultimately formed the basis of the second referral. As a result of this notification, the applicant took immediate registration action by suspending the respondent’s registration with no show cause period, undoubtedly because of the concerns about public health and safety arising out of the notifications underpinning the first referral.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.