Health Ombudsman v Henson - [2020] QCAT 72

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Henson [2020] QCAT 72

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

ADAM MURRAY HENSON

(respondent)

APPLICATION NO/S:

OCR049-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 February 2020 (ex tempore)

HEARING DATE:

10 February 2020

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Ms Harriet Barker
Dr Kim Forrester
Mr Ken MacDougall

ORDERS:
1. In relation to Allegation 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. In relation to Allegation 2, pursuant to s 107(2)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has no case to answer and orders no further action is to be taken in relation to that matter.

3. In relation to Allegation 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.

4. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

5. Each party must bear the party’s own costs for the proceedings.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the conduct the subject of the referral to the Tribunal did not occur within the respondent’s practice of nursing – where the respondent committed criminal offences of disclosure of a confidential document contrary to s 84(2) of the Crime and Corruption Act 2001 and drug offences – where the respondent pleaded guilty to the offences in the Magistrates Court and was fined without convictions recorded – whether such conduct should be characterised as professional misconduct – where the respondent contravened s 130 of the Health Practitioner Regulation National Law by failing to notify the Nursing & Midwifery Board within 7 days of relevant events – whether such conduct should be characterised as unprofessional conduct – whether separate findings of unprofessional conduct should be made where such conduct is secondary to the primary conduct found to be professional misconduct – what sanction should be imposed for professional misconduct and unprofessional misconduct

Crime and Corruption Act 2001 (Qld), s 84

Drugs Misuse Act 1986 (Qld), s 9, s 10
Health (Drugs and Poisons) Regulation 1996 (Qld), s 204
Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law(Queensland), s 5, s 130

Briginshaw v Briginshaw (1938) 60 CLR 336

Craig v Medical Board of South Australia (2001) 79 SASR 545
Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v Hardy [2018] QCAT 416
Health Ombudsman v Kiley [2019] QCAT 19
Health Ombudsman v Field [2019] QCAT 243

Health Ombudsman v McGuinness [2020] QCAT 1

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Health Ombudsman

Respondent:

E Bassingthwaighte of Hall Payne Lawyers

REASONS FOR DECISION

The Director of Proceedings on…

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: [2020] QCAT 72
Decision Date: 10 February 2020 (ex tempore)

CaseChat Overview and Summary

In the case of Health Ombudsman v Henson, the Queensland Health Ombudsman brought proceedings against the respondent, a registered nurse, before the Queensland Civil and Administrative Tribunal. The Ombudsman alleged that the respondent's conduct amounted to professional and unprofessional misconduct under the Health Practitioner Regulation National Law (Qld). The Tribunal needed to determine whether the respondent's criminal offences and failure to notify the Nursing and Midwifery Board constituted professional misconduct and unprofessional conduct, and if so, what sanctions should be imposed.

The primary legal issues before the Tribunal were whether the respondent's criminal offences, which did not occur within the practice of nursing, should be characterised as professional misconduct. Additionally, the Tribunal had to decide whether the respondent's failure to notify the Nursing and Midwifery Board within seven days of the relevant events amounted to unprofessional conduct. The Tribunal also needed to determine whether separate findings of unprofessional conduct should be made where such conduct was secondary to the primary conduct found to be professional misconduct, and what sanctions should be imposed for the misconduct found.

The Tribunal found that the respondent's conduct amounted to professional misconduct because the criminal offences constituted behaviour that brought the profession into disrepute. However, the Tribunal found no case to answer in relation to the second allegation as it did not relate to the practice of nursing. Regarding the third allegation, the Tribunal found that the respondent's failure to notify the Board constituted unprofessional conduct. The Tribunal decided that a reprimand was an appropriate sanction for the misconduct found.

The Tribunal ordered that the respondent was reprimanded and that each party bear their own costs for the proceedings. No further action was to be taken in relation to the second allegation.

Orders

Orders of the court

1. In relation to Allegation 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. In relation to Allegation 2, pursuant to s 107(2)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has no case to answer and orders no further action is to be taken in relation to that matter.

3. In relation to Allegation 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.

4. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

5. Each party must bear the party’s own costs for the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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