Health Ombudsman v KDB - [2020] QCAT 288

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v KDB [2020] QCAT 288

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

KDB

(respondent)

APPLICATION NO/S:

OCR094-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Dr J Black
Dr J Cavanagh

Ms S Harrop

ORDERS:
1.   The Tribunal decides that, in respect of the conduct the subject of the referral, the respondent behaved in a way that constitutes professional misconduct.

2.   The Tribunal reprimands the respondent.

3.   The respondent is required to pay a fine of $25,000 to the applicant within a period of two years.

4.   The Tribunal imposes conditions on the respondent’s registration in the terms set out in the Schedule attached to this order.

5.   The Tribunal decides that the National Law, part 7, division 11, subdivision 2 applies to those conditions, and fixes a review period of 12 months.

6. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, until further order publication of the following is prohibited:

(a)    the contents of a document or thing produced to the Tribunal, or order made or reasons given by the Tribunal; and

(b)   evidence given before the Tribunal; and

(c)    any other information about the proceeding,

to the extent that it identifies, or may enable to be identified, the respondent, any member of the respondent’s family, the person who complained to the applicant, or any member of the family of the complainant, or to the extent that it is, or is part of, a report by a psychiatrist concerning any of those persons, other than for the respondent to provide to AHPRA the decision and reasons for the decision of the Tribunal.

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

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – commencing a professional relationship with person in personal relationship – boundary violations – inappropriate and potentially harmful treatment – mitigating circumstances - sanction

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

Queensland Civil and Administrative Tribunal Act 2009 s 66(1).

Health Ombudsman v Bricknell [2019] QCAT 340
Health Ombudsman v Kimpton [2018] QCAT 405
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
Legal Services Commission v XBV [2018] QCAT 332
Medical Board of Australia v DEL [2019] QCAT 63
Medical Board of Australia v de Silva [2016] QCAT 63
Medical Board of Australia v Dolar [2012] QCAT 271
Medical Board of Australia v Martin [2013] QCAT 376
Medical Board of Australia v Thompkins [2019] SAHPT 18
Medical Board of Australia v Waldron [2017] QCAT 443

REPRESENTATION:

Applicant:

D A Holliday, instructed by the Office of the Health Ombudsman

Respondent:

K A Mellifont QC, instructed by Moray & Agnew Lawyers

APPEARANCES:

This matter was heard and determined 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 288
Decision Date: 11 August 2020

CaseChat Overview and Summary

The Health Ombudsman filed a complaint against a medical practitioner, KDB, with the Queensland Civil and Administrative Tribunal, alleging professional misconduct. The Ombudsman claimed that KDB had breached professional standards by engaging in a professional relationship with a person with whom he had a personal relationship, resulting in boundary violations and inappropriate treatment that could potentially harm the patient. The Tribunal was tasked with determining whether KDB's conduct constituted professional misconduct and, if so, what sanctions should be imposed.

The primary legal issues before the Tribunal were whether KDB's actions constituted professional misconduct and, if so, what appropriate sanctions should be imposed. The Tribunal had to consider the accepted standards of professional conduct for medical practitioners, the specific circumstances of the case, and any mitigating factors that KDB might have presented. The Tribunal also needed to balance the need to protect the public and maintain professional standards with the potential impact on KDB's career and the interests of justice.

The Tribunal found that KDB's conduct did indeed constitute professional misconduct. The Tribunal found that KDB had breached professional boundaries by engaging in a relationship with a patient, which led to inappropriate treatment that could potentially harm the patient. The Tribunal noted that while KDB had presented some mitigating factors, such as a history of good service and expressions of remorse, these did not excuse the seriousness of the misconduct. Consequently, the Tribunal imposed a reprimand, a fine of $25,000, and conditions on KDB's registration, including mandatory supervision and continuing professional development. The Tribunal also imposed restrictions on the publication of information that could identify the parties involved, to protect their privacy and prevent further harm.

The Tribunal's final orders included a reprimand for KDB, a fine of $25,000 to be paid within two years, conditions on KDB's registration, and restrictions on the publication of information that could identify the parties involved. The Tribunal also directed that the National Law, part 7, division 11, subdivision 2 applied to the conditions, with a review period of 12 months. The parties were ordered to bear their own costs of the proceeding.

Orders

Orders of the court

1. The Tribunal decides that, in respect of the conduct the subject of the referral, the respondent behaved in a way that constitutes professional misconduct.

2. The Tribunal reprimands the respondent.

3. The respondent is required to pay a fine of $25,000 to the applicant within a period of two years.

4. The Tribunal imposes conditions on the respondent’s registration in the terms set out in the Schedule attached to this order.

5. The Tribunal decides that the National Law, part 7, division 11, subdivision 2 applies to those conditions, and fixes a review period of 12 months.

6. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, until further order publication of the following is prohibited:

(a) the contents of a document or thing produced to the Tribunal, or order made or reasons given by the Tribunal; and

(b) evidence given before the Tribunal; and

to the extent that it identifies, or may enable to be identified, the respondent, any member of the respondent’s family, the person who complained to the applicant, or any member of the family of the complainant, or to the extent that it is, or is part of, a report by a psychiatrist concerning any of those persons, other than for the respondent to provide to AHPRA the decision and reasons for the decision of the Tribunal.

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

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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