Health Ombudsman v JTM

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v JTM [2020] QCAT 394

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

JTM

(respondent)

APPLICATION NO/S:

OCR126-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 October 2020 (Ex tempore)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Jennifer Felton
Dr Kim Forrester

Mr James McNab

ORDERS:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the respondent has behaved in a way that constitutes professional misconduct.

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

3.   Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a nurse – where the respondent pleaded guilty to one count of assault occasioning bodily harm whilst armed (domestic violence offence) – where the parties agree to fact and sanction but diverge on how to characterise the respondent’s conduct – whether professional misconduct – sanction

Health Ombudsman Act 2013, s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland) 2009 s 5

Briginshaw v Briginshaw 1938 60 CLR 336

Health Care Complaints Commission v Haasbroek [2019] NSWCATOD 177
Health Ombudsman v Field [2019] QCAT 243
Health Ombudsman v Niem Quoc Tang [2020] QCAT 165
Nursing and Midwifery Board of Australia v Hogan [2018] TASHPT 3
Nursing and Midwifery Board of Australia v Mura [2019] VCAT
Nursing and Midwifery Board of Australia v NH [2014] SAHPT 2

APPEARANCES & REPRESENTATION:
Applicant:	Director of Proceedings on behalf of the Health Ombudsman
Respondent:	Hall Payne Lawyers

REASONS FOR DECISION

1. The applicant filed an amended application on 25 September 2019, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law 2009 (Qld) (the National Law). In the alternative, the applicant alleges in the referral that the respondent has behaved in a way that constitutes unprofessional conduct.

2. The referral contains one allegation, which relates to the respondent’s conviction on his own plea of guilty to one count of assault occasioning bodily harm whilst armed (domestic violence offence) in the Southport District Court on 17 November 2017. The parties filed an agreed statement of the relevant facts and agree on the appropriate sanction. They diverge on the issue of how the Tribunal should characterise the respondent’s conduct.

Background

1. The respondent was born on 19 January 1976. He is currently 44 years of age. He was 40 at the time of the relevant conduct. He was registered as an enrolled nurse in 2008. He completed a Bachelor of Nursing in 2009 and was registered as a registered nurse in 2010. In 2014, whilst employed as a registered nurse at Logan Hospital, he injured his back and he has not worked…