Health Ombudsman v Heath - [2022] QCAT 30

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Heath [2022] QCAT 30

PARTIES:
HEALTH OMBUDSMAN

(applicant)

v

RICHARD JOHN HEATH

(respondent)

APPLICATION NO/S:

OCR152-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 February 2022

HEARING DATE:

29 July 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Dr S Goode
Dr D Khursandi
Dr W Grigg

ORDERS:

1. As regards Allegation 1, pursuant to section 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. As regards Allegation 2, pursuant to section 107(2)(b)(i) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unsatisfactory professional performance.

3. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical practitioner in general practice – where the respondent failed to maintain appropriate professional boundaries with a patient – whether such conduct should be characterised as professional misconduct – where the respondent provided inappropriate treatment and management of the patient – whether such conduct should be characterised as unsatisfactory professional performance – what sanction should be imposed

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

Craig v Medical Board of South Australia (2001) 79 SASR 545
Health Care Complaints Commission v McCroary [2019] NSWCATOD 115
Health Ombudsman v O’Reilly [2021] QCAT 362
Health Ombudsman v Stephens [2020] QCAT 510
Health Ombudsman v Veltmeyer [2021] QCAT 77
Health Ombudsman v Whittaker [2020] QCAT 180
Medical Board of Australia v Nandam [2011] QCAT 65
Psychology Board of Australia v Cameron [2015] QCAT 227

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

JR Jones instructed by Avant Law

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Richard John Heath (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct and unsatisfactory professional performance and seeks orders by way of sanction.
The parties agree as to the facts of the conduct the subject of the referral and its appropriate characterisation as professional misconduct and unsatisfactory professional performance, but differ as to the sanction that should be imposed upon the respondent.

Background

The respondent is 63 years old, and was aged 53 to 60 years old at the time of the conduct the subject of the referral.
The respondent was first granted medical registration on or around 10 January 1984 by the Medical Board of Victoria, and then on 20 October 1988 granted registration by the Medical Board of Australia…

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 30
Decision Date

CaseChat Overview and Summary

The Tribunal was tasked with determining the appropriate characterisation of the respondent's conduct and the appropriate sanction, if any, to impose. The Tribunal was required to decide whether the respondent's conduct constituted professional misconduct and unsatisfactory professional performance, and if so, what the appropriate sanction should be. The characterisation of the conduct was agreed upon by the parties, but they differed on the appropriate sanction.

The Tribunal found that the respondent's conduct did constitute professional misconduct and unsatisfactory professional performance. With respect to Allegation 1, the Tribunal found that the respondent's conduct amounted to unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The Tribunal found that the respondent's conduct was contrary to the relevant codes of conduct and sexual boundaries guidelines and amounted to a serious departure from professional standards. With respect to Allegation 2, the Tribunal found that the respondent's conduct was unsatisfactory in that he prescribed treatment in circumstances where he had a significant history of a personal and sexual relationship with Patient A and did not make any adequate clinical record of the treatment he provided.

The Tribunal found that a reprimand was sufficient to denounce the respondent's professional misconduct and unsatisfactory professional performance and meet considerations of personal and general deterrence, maintenance of professional standards and public confidence in the medical profession. The Tribunal noted that the respondent had already suffered consequences as a result of his conduct, including suspension of his registration and imposition of conditions on his registration. The Tribunal also noted that the respondent had demonstrated insight and remorse by his prompt admissions during the course of the investigation and his co-operation during the Tribunal proceedings. The Tribunal found that an order for suspension was not required to properly meet the protective purposes of sanction.

The Tribunal made orders reprimanding the respondent and ordering that the reprimand be recorded on the Register until such time as the Board considers it appropriate to remove it. The Tribunal did not make any order for suspension of the respondent's registration.

Orders