QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v HSK [2018] QCAT 419
PARTIES:
HEALTH OMBUDSMAN
(applicant)v HSK
(respondent)
APPLICATION NO/S:
OCR029-18
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
19 December 2018
HEARING DATE:
12 December 2018
HEARD AT:
Brisbane
DECISION OF:
Judge Sheridan, Deputy President
Assisted by:
Ms M Barnett
Mr S Lewis
Professor M LuptonORDERS:
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds HSK has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), HSK is reprimanded.
3. Each party bears their own costs.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the respondent nurse engaged in boundary violations with two former patients – where the respondent was suffering from an unmanaged mental health condition at the time of the misconduct – where the respondent made full admissions and fully cooperated in the investigation and proceedings – where the respondent admitted professional misconduct – where the respondent was subject to conditions following immediate action imposed by the Health Ombudsman and subsequent investigations by the Nursing and Midwifery Board – where further ethical training and psychotherapy undertaken voluntarily by the respondent – where the parties have an agreed position on sanction – whether the sanction proposed is appropriate
Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107(2)(b)(iii), s 107(3)(a)
Health Practitioner Regulation National Law (Queensland), s 5Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77
Peeke v Medical Board of Victoria [1994] VicSC 7APPEARANCES & REPRESENTATION:
Applicant:
M Price for the Office of the Health Ombudsman
Respondent:
J Allen QC instructed by Hall Payne Lawyers
REASONS FOR DECISION
Background
On 31 January 2018, the Health Ombudsman referred to the Queensland Civil and Administrative Tribunal disciplinary proceedings against the respondent pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) (the referral proceedings).
These proceedings progressed through the tribunal with related review proceedings (the review proceedings) filed in the tribunal by the respondent on 20 July 2018. In those proceedings, the respondent had applied for review of a decision of the Nursing and Midwifery Board of Australia (Board) to impose conditions on her registration after she was assessed as having a health impairment. An order was sought to set aside the decision of the Board.
The tribunal in these proceedings is asked only to deal with the conduct aspect of the matter.
The primary offending conduct relates to boundary violations which occurred over the space of three days in relation to two former patients of the respondent.
There are no factual issues in dispute between the parties, and the matter proceeded before the tribunal by way of a statement of agreed facts and joint submissions on sanction.
The referral
The referral alleges that the respondent engaged in two instances of conduct…
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- Case
- [2018] QCAT 419
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal involved the characterisation of HSK's conduct as professional misconduct and the appropriateness of the proposed sanction. HSK admitted to the boundary violations and recognised the misconduct, and cooperated fully with the investigation and proceedings. The tribunal also considered the impact of HSK's unmanaged mental health condition at the time of the misconduct, as well as the steps HSK had taken post-incident to address the underlying issues, including ethical training and psychotherapy.
The tribunal found that HSK's conduct did constitute professional misconduct. It took into account HSK's full admissions, cooperation, and voluntary efforts to rectify the situation. Given the agreed position of the parties on the sanction and considering the factors in mitigation, the tribunal deemed a reprimand appropriate. The tribunal ordered that HSK be reprimanded and that each party bear their own costs.
Orders
Orders of the court
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds HSK has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), HSK is reprimanded.
3. Each party bears their own costs.
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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