Health Ombudsman v Han - [2022] QCAT 440

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Han [2022] QCAT 440

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

XIUGUANG HAN

(respondent)

APPLICATION NO/S:

OCR340-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 December 2022 (ex tempore)

HEARING DATE:

7 December 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Fiona Banwell
Ms Sharyn Hopkins
Mr Peter Zimon

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has engaged in 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(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a nurse for a period of eight years.

4. Pursuant to section 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service until he obtains registration as a health practitioner under the National Law.

5. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the respondent was convicted of one count of rape and three counts of unlawful indecent assault against a female colleague – where the respondent was the supervisor of the complainant – whether the respondent engaged in professional misconduct – whether the respondent should be reprimanded – whether the respondent should be disqualified from registration as a nurse – whether the respondent should be prohibited from providing health services

Health Ombudsman Act 2013 (Qld) ss 21, 107
Health Practitioner Regulation National Law Act 2009 (Qld) sch (‘Health Practitioner Regulation National Law’) Pt 1, s 5

Health Ombudsman v Hoddle [2022] QCAT 142

Pharmacy Board of Australia v Tan [2016] VCAT 1653

APPEARANCES & REPRESENTATION:

Applicant:

Mr Price for the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

Background

The Referral by the Director of Proceedings on behalf of the Health Ombudsman (the applicant), filed on the 14^th of December 2021, concerns the respondent, who was a registered nurse when he sexually assaulted and digitally raped a female assistant in nursing on the 18th of October 2019. The offences occurred after the respondent had completed a day shift as a registered nurse at an aged care facility in Brisbane. During the day he had supervised the young female nursing assistant who became the complainant in relation to the sexual offending. Full particulars of the respondent’s criminal conduct are set out in the amended referral filed on the 19^th of August 2022.
The respondent was born on the 18^th of November 1990, so he is currently 32 years of age and was 29 at the time of the offending.
After the shift on the 18^th of October 2019, he offered to drive the young complainant to the train station stop. They sat talking in the car, as a…

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: [2022] QCAT 440
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) considered the case of Health Ombudsman v Han, where the Health Ombudsman sought disciplinary action against a registered nurse who had been convicted of sexual offences against a female colleague. The respondent had supervised the complainant at work and assaulted her after offering to drive her home. The Tribunal was required to determine whether the respondent's actions constituted professional misconduct and, if so, what sanctions should be imposed.

The primary legal issue was whether the respondent's actions met the criteria for professional misconduct as defined by the National Law. Professional misconduct includes conduct that is substantially below the standard reasonably expected of a registered health practitioner, amounts to multiple instances of unprofessional conduct, or is inconsistent with the practitioner being a fit and proper person to hold registration. The Tribunal found that the respondent's conduct was a gross abuse of trust, significantly below the expected standard of a registered nurse, and inconsistent with holding registration.

Considering the seriousness of the offences and the lack of remorse shown by the respondent, the Tribunal concluded that both specific and general deterrence were necessary. The Tribunal imposed sanctions including a reprimand, an eight-year disqualification from applying for registration as a nurse, and a prohibition on providing health services until obtaining registration under the National Law.

In summary, the Tribunal found the respondent had engaged in professional misconduct and imposed sanctions to protect public safety and maintain confidence in the nursing profession. The respondent was reprimanded, disqualified from applying for registration as a nurse for eight years, and prohibited from providing health services until he obtained registration as a health practitioner.

Orders