Health Ombudsman v Hammens
[2023] QCAT 548
•5 May 2023 (ex tempore)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Hammens [2023] QCAT 548
PARTIES:
HEALTH OMBUDSMAN (applicant)
v
JOHNATHON GEORGE LAVER HAMMENS (respondent)
APPLICATION NO/S:
OCR163-22
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
5 May 2023 (ex tempore)
HEARING DATE:
5 May 2023
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Dick SC
Assisted by:
Mr R Ashcroft
Dr M Sidebotham
Ms B L SoongORDERS:
1. The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
2. The respondent is reprimanded.
3. Each party must bear their own costs in the proceedings.
CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent is a registered nurse — where the respondent committed a criminal offence of observations or recordings in breach of privacy in relation to the genital or anal region — where the conduct constitutes professional misconduct — where the respondent had surrendered his registration — findings of professional misconduct and unprofessional conduct — reprimand
Health Practitioner Regulation National Law (Queensland)
Health Ombudsman Act 2013 (Qld)
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
APPEARANCES & REPRESENTATION:
Applicant:
D Dupree, Legal Officer of the Office of the Health Ombudsman
Respondent:
Self-represented
REASONS FOR DECISION
This is a referral to the Tribunal by the applicant pursuant to the Health Ombudsman Act 2013 (Qld) (‘HO Act’). The background of the matter is that the respondent, while a registered nurse, committed a criminal offence of observations or recordings in breach of privacy in relation to the genital or anal region. The victim of the offence was his housemate; I will go into the details a little bit later.
The guiding principle in administering the HO Act is that the health and safety of the public are paramount.[1] The main consideration when deciding in matters such as this is the health and safety of the public.[2] The applicant bears the onus here of establishing that the respondent has conducted himself in a way that amounts to unprofessional conduct or, alternatively, professional misconduct. At the outset I should say that the respondent has engaged little in the process and is not present today, having advised by email yesterday that he had:
…found out about a complication for tomorrow that may make it impossible for me to attend the hearing.[3]
[1]Health Ombudsman Act 2013 (Qld) s 4(1) (‘HO Act’).
[2]Ibid s 4(2)(c).
[3]Email from the respondent, 4 May 2023.
The email finishes by saying:
I understand that the hearing will proceed in my absence.[4]
[4]Ibid.
The onus, of course, is what is well known as the Briginshaw standard.[5]
[5]Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.
Background
The respondent was 37 at the time of the offending, which was 23 March 2021. The complainant in the criminal matter was his housemate. There is a little bit of a complicated history to the matter in that the respondent (i.e., the defendant in the criminal matter) and the complainant met in July 2020. By September 2020, the respondent’s wife and the complainant had formed an intimate relationship with each other, and the complainant began residing with the couple. Some weeks later, by probably the end of September 2020, that intimate three-way relationship had finished.
The complainant continued to live at the couple’s residence as a housemate, but some time before 23 March 2021, the respondent secreted a recording device in the bathroom he shared with the complainant. On 23 March 2021, the respondent recorded the complainant as she entered the bathroom, undressed, used the toilet and had a shower. The complainant noticed the device within a short time and threw a towel over it to obscure it. She made a complaint later that day. The respondent attended the police station, participated in a record of interview and made admissions to secreting a recording device. He gave an explanation but, in any event, pleaded guilty on 3 March 2022 in the Magistrates Court.
Not much was put forward on his behalf at that time as to his employment as at the time of the offence. It could be understood from the material that the police did take his computer and mobile phone and, assumedly, searched it. All that was said about his work was that at the time of that hearing he was working in a call centre and that he did not have any plans to return to nursing. He had divorced from his wife. He had no criminal history, and he pleaded guilty early.
It was noted that he had attended six sessions with a psychologist, but, as the magistrate pointed out later in the hearing and as can be seen from the psychologist’s letter attached to the file, it is not clear in any way that he saw that psychologist about the behaviour connected to the charge or that he was treated for the behaviour connected to the charge. The magistrate made that clear and imposed probation with a condition he submit to such medical, psychiatric or psychological assessment and treatment as directed. No conviction was recorded. Originally, he was charged with two offences, one of unlawful stalking and then the offence which has been referred to. The stalking charge was not proceeded with.
Very quickly after the event on 12 April 2021, the Office of the Health Ombudsman issued a notice of proposed immediate registration action, being conditions on his nursing registration prohibiting him from having contact with female patients and prohibiting him from having any contact with males under 18. A short time later on 21 April 2021, the respondent surrendered his registration, which was effective from 4 May 2021.
Discussion and Sanction
The conduct is serious. It was an invasion of privacy, as was pointed out by the magistrate, and it has had an impact on the complainant. The magistrate noted that the respondent had cooperated with the police, it was an isolated incident but a serious one and referred to the need for general deterrence. This conduct, of course, did not happen in his professional capacity. That does not mean it cannot form the basis of a finding of unprofessional conduct or professional misconduct.
It is much more usual than not that a finding of a criminal conduct, whether or not a conviction is recorded, will fit within the Health Practitioner Regulation National Law (Queensland) (‘National Law’) definitions that the conduct is incompatible and inconsistent with the characteristics, attitudes, qualities and ethical standards expected of members of the relevant profession. The Code of Conduct for Nurses (‘Code of Conduct’) requires that nurses act ethically and honestly and should not engage in unlawful behaviour.
The Tribunal is satisfied here that the respondent’s conduct ‘amounts to conduct that is substantially below the standard reasonably expected of a registered [nurse] of an equivalent level of training or experience’[6] and therefore amounts to professional misconduct. The Tribunal has been provided with some comparative decisions which the Tribunal has read. As has been said earlier, the purpose of disciplinary proceedings is to protect not to punish. But in respect of the health and safety of the public the Tribunal has asked a number of questions.
[6]Health Practitioner Regulation National Law (Queensland) s 5 (‘National Law’); HO Act (n 1) sch 1 (definition of ‘professional misconduct’).
Because the respondent has not engaged in this proceeding, we are unable to come to any finding as to his nor do we have any information as to his employment or previous employment leading up to the offence. However, in relation to some other questions, counsel has been helpful in informing the Tribunal that if the respondent applies for re-registration, section 52(1)(c) of the National Law provides that he must be a ‘suitable person to hold general registration’. The National Law also provides that conditions can attach to any re-registration[7] and sets out some circumstances in which a person would be considered unsuitable.[8] Certainly, any prior criminal behaviour may have a bearing on suitability.[9] Recency of practise is a consideration[10] and there is the catch-all ‘any other reason’ that the Board may decide that the applicant is not a suitable person for re-registration.[11] The Tribunal is passably satisfied that these reasons and the background will be before any board which considers an application for re-registration.
[7]National Law (n 6) s 52(2)(a).
[8]Ibid s 55.
[9]Ibid s 55(1)(b).
[10]Ibid s 55(1)(f).
[11]Ibid s 55(1)(h).
The Board has considered the nature and seriousness of the respondent’s conduct. His insight and remorse can only be demonstrated by his plea of guilty in the Magistrates Court and his lack of opposition to the proceedings here today. The evidence of rehabilitation is somewhat ephemeral if it’s there at all except by his plea of guilty. By this time, however, the respondent has been away from practise for approximately two years. He has been criminally sanctioned and he now faces disciplinary proceedings.
Examination of the comparative decisions would suggest that suspending his registration for two years would be at the top end of the range of any sanction that a Tribunal would be minded to impose largely because it was an isolated incident. He has already been away from practise for approximately two years. The other cases were more serious in that they occurred within the professional role and on many more occasions. It has been noted many times that a reprimand is not a criminal penalty and has the potential for serious adverse implications for a professional man. It is a public denunciation of the respondent’s conduct and a matter of public record.
In those circumstances:
The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
The respondent is reprimanded.
Each party must bear their own costs in the proceedings.
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