Health Ombudsman v JSP - [2020] QCAT 334

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v JSP [2020] QCAT 334

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

JSP

(respondent)

APPLICATION NO/S:

OCR021-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Ms Suzanne Harrop
Mr Andrew Foote Petrie

Ms Kerrie Kensell

ORDERS:
1. The Tribunal decides that the conduct of the respondent, in respect of allegations 1, 2 and 4, amounted to professional misconduct as defined in the National Law.

2. The Tribunal decides that the conduct of the respondent, in respect of allegation 3, amounted to unprofessional conduct as defined in the National Law.

3.   The Tribunal reprimands the respondent.

4.   The parties bear their own costs of the proceeding.

5. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of:

(a)    the contents of a document or other thing produced to the Tribunal;

(b)   evidence given before the Tribunal;

(c)    any order made or reasons given by the Tribunal.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – professional misconduct – practitioner stole restricted and controlled drugs from employer – false entries in controlled drug register – unlawful possession of drugs and paraphernalia – registration surrendered –sanction – non-publication order made

Health Ombudsman Act 2013 s 103(1)(a), s 104, s 107

Queensland Civil and Administrative Tribunal Act 2009, s 66

Cutbush v Team Maree Property Service [2010] QCATA 89
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Ombudsman v DeCelis [2019] QCAT 140
Health Ombudsman v Kimpton [2018] QCAT 405
Health Ombudsman v NLM (No 2) [2019] QCAT 366
Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149
Legal Services Commission v XBV [2018] QCAT 332
Medical Board of Australia v Waldron [2017] QCAT 443
Pharmacy Board of Australia v Chrenowski [2011] SAHPT 26
Pharmacy Board of Australia v Christie [2016] QCAT 291
Pharmacy Board of Australia v Dougherty [2014] SAHPT 6
Pharmacy Board of Australia v Thomas [2011] QCAT 637

REPRESENTATION:

Applicant:

Office of the Health Ombudsman

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act I sat with assessors Ms S Harrop, Mr A F Petrie and Ms K Kensell.[1]
[1]Health Ombudsman Act 2013 s 126. For their function, see s 127.
The respondent was at the relevant times a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld)…

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 334
Decision Date: 3 September 2020

CaseChat Overview and Summary

The Health Ombudsman filed proceedings against a pharmacist, JSP, before the Queensland Civil and Administrative Tribunal. The Ombudsman sought to have JSP’s registration as a pharmacist cancelled or suspended on the basis that his conduct amounted to professional or unprofessional conduct. The dispute arose from JSP’s theft of restricted and controlled drugs from his employer and his false entries in the controlled drug register. He also unlawfully possessed drugs and paraphernalia. The Tribunal had to determine whether JSP’s conduct amounted to professional or unprofessional conduct and, if so, what sanction should be imposed.

The Tribunal had to decide whether JSP’s conduct amounted to professional or unprofessional conduct under the National Law. It had to consider whether his conduct demonstrated unsuitability to hold a registration and whether it fell below the standards of professional competence and conduct expected of a registered health practitioner. The Tribunal also had to consider whether the conduct was of such a nature as to justify a sanction under the National Law.

The Tribunal found that JSP’s conduct amounted to professional misconduct in respect of allegations 1, 2 and 4 and unprofessional conduct in respect of allegation 3. It found that his conduct demonstrated unsuitability to hold a registration and fell below the standards of professional competence and conduct expected of a registered health practitioner. The Tribunal found that the nature of the conduct justified a sanction under the National Law. The Tribunal decided to reprimand JSP and ordered that the parties bear their own costs of the proceeding. It also made a non-publication order until further order, to the extent that it would identify JSP or enable JSP to be identified, of the contents of a document or other thing produced to the Tribunal, evidence given before the Tribunal, and any order made or reasons given by the Tribunal.

Orders

Orders of the court

1. The Tribunal decides that the conduct of the respondent, in respect of allegations 1, 2 and 4, amounted to professional misconduct as defined in the National Law.

2. The Tribunal decides that the conduct of the respondent, in respect of allegation 3, amounted to unprofessional conduct as defined in the National Law.

3. The Tribunal reprimands the respondent.

4. The parties bear their own costs of the proceeding.

5. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of:

(a) the contents of a document or other thing produced to the Tribunal;

(b) evidence given before the Tribunal;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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