Health Ombudsman v Ku - [2019] QCAT 377

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Ku [2019] QCAT 377

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

CHI-YU (TIFFANY) KU

(respondent)

APPLICATION NO/S:

OCR115-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:
1. Pursuant to section 126(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal conducts the hearing of this disciplinary proceeding without the assistance of assessors.

2. Pursuant to section 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.

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

4. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes the following conditions on the respondent’s registration:

The respondent must undertake and successfully complete an education program on ethics as approved by the National Board and including a reflective practice report, as follows:

(a)    Within one month of the notice of the imposition of this condition, the respondent must nominate in writing for approval by the National Board a program of education on ethics, including a copy of the curriculum of the education program;

(b)   After receiving the National Board’s approval of the nominated education program, the respondent must register for the next available approved education program;

(c)    Within one month of completing the approved education program, the respondent must provide to the National Board:

            (i)     evidence of successful completion of the education program;

           (ii)     a reflective practice report demonstrating, to the satisfaction of the National Board, that the respondent has reflected on the issues that gave rise to this condition and how the respondent has incorporated the lessons learnt in the education into the respondent’s practice;

5. Pursuant to section 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, part 7, division 11, subdivision 2 applies to the conditions imposed on the respondent’s registration.

6. Pursuant to section 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions imposed on the respondent’s registration is six months.

7.   Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OPTICIANS AND OPTOMETRISTS – DISCIPLINARY PROCEEDINGS – where the respondent was referred by the applicant following her conviction for a number of offences involving credit card fraud – where the respondent demonstrated insight and remorse – where the respondent suffered deterrent consequences of her conduct including the loss of her employment, criminal sentencing and the suspension of her registration pursuant to immediate action – where the parties agree as to the facts - where the parties agree as to the characterisation of the conduct as professional misconduct – where the parties agree as to the appropriate sanction – whether the proposed sanction is appropriate

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – where s 126(1) of the Health Ombudsman Act 2013…

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: [2019] QCAT 377
Decision Date: 16 December 2019

CaseChat Overview and Summary

The Health Ombudsman initiated disciplinary proceedings against Ms Ku, an optometrist, referred to the Queensland Civil and Administrative Tribunal (QCAT) following her conviction for credit card fraud. Both parties agreed on the facts, the characterisation of the conduct as professional misconduct, and the appropriate sanction. The central issues for determination were whether the hearing should proceed without assessors under section 126(2) of the Health Ombudsman Act 2013 (Qld), and whether the proposed sanction was appropriate.

The Tribunal considered the urgency and complexity of the case, as well as the necessity of proceeding without assessors under section 126(2) of the Act. Given the agreement on the facts and the agreed sanctions, the Tribunal determined that proceeding without assessors was appropriate to address the matter's urgency. The Tribunal found that Ms Ku's conduct constituted professional misconduct. It accepted the agreed sanction of a reprimand and additional conditions on her registration, including mandatory ethics education and a reflective practice report.

Ms Ku was reprimanded and ordered to undertake and complete an ethics education program approved by the National Board, accompanied by a reflective practice report. The Tribunal imposed these conditions to ensure Ms Ku reflected on her misconduct and integrated ethical practices into her professional conduct. The Tribunal also ordered that each party bear their own costs for the proceedings.

The final orders included conducting the hearing without assessors, reprimanding Ms Ku, imposing specific conditions on her registration, and allocating costs to each party. These orders aimed to address Ms Ku's misconduct appropriately while ensuring she understood the impact of her actions on her professional integrity.

Orders

Orders of the court

1. Pursuant to section 126(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal conducts the hearing of this disciplinary proceeding without the assistance of assessors.

2. Pursuant to section 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.

3. Pursuant to section 207(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

4. Pursuant to Section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes the following conditions on the respondent’s registration:

The respondent must undertake and successfully complete an education program on ethics as approved by the National Board and including a reflective practice report, as follows:

(a) Within one month of the notice of the imposition of this condition, the respondent must nominate in writing for approval by the National Board a program of education on ethics, including a copy of the curriculum of the education program;

(b) After receiving the National Board’s approval of the nominated education program, the respondent must register for the next available approved education program;

(i) evidence of successful completion of the education program;

(ii) a reflective practice report demonstrating, to the satisfaction of the National Board, that the respondent has reflected on the issues that gave rise to this condition and how the respondent has incorporated the lessons learnt in the education into the respondent’s practice;

5. Pursuant to section 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, part 7, division 11, subdivision 2 applies to the conditions imposed on the respondent’s registration.

6. Pursuant to section 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions imposed on the respondent’s registration is six months.

7. Each party must bear the party’s own costs for the proceeding.

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

Full text does not contain this section.

CITATION:	Health Ombudsman v Ku [2019] QCAT 377
PARTIES:	HEALTH OMBUDSMAN
(applicant)
v
CHI-YU (TIFFANY) KU
(respondent)
APPLICATION NO/S:	OCR115-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	16 December 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President
ORDERS:	1. Pursuant to section 126(2) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal conducts the hearing of this disciplinary proceeding without the assistance of assessors. 2. Pursuant to section 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. 3. Pursuant to section 107(3)(a) of the *Health Ombudsman Act* 2013 (Qld), the respondent is reprimanded. 4. Pursuant to section 107(3)(b) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal imposes the following conditions on the respondent’s registration: The respondent must undertake and successfully complete an education program on ethics as approved by the National Board and including a reflective practice report, as follows: (a) Within one month of the notice of the imposition of this condition, the respondent must nominate in writing for approval by the National Board a program of education on ethics, including a copy of the curriculum of the education program; (b) After receiving the National Board’s approval of the nominated education program, the respondent must register for the next available approved education program; (c) Within one month of completing the approved education program, the respondent must provide to the National Board: (i) evidence of successful completion of the education program; (ii) a reflective practice report demonstrating, to the satisfaction of the National Board, that the respondent has reflected on the issues that gave rise to this condition and how the respondent has incorporated the lessons learnt in the education into the respondent’s practice; 5. Pursuant to section 109(2) of the *Health Ombudsman Act* 2013 (Qld), the National Law, part 7, division 11, subdivision 2 applies to the conditions imposed on the respondent’s registration. 6. Pursuant to section 109(3) of the *Health Ombudsman Act* 2013 (Qld), the review period for the conditions imposed on the respondent’s registration is six months. 7. Each party must bear the party’s own costs for the proceeding.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OPTICIANS AND OPTOMETRISTS – DISCIPLINARY PROCEEDINGS – where the respondent was referred by the applicant following her conviction for a number of offences involving credit card fraud – where the respondent demonstrated insight and remorse – where the respondent suffered deterrent consequences of her conduct including the loss of her employment, criminal sentencing and the suspension of her registration pursuant to immediate action – where the parties agree as to the facts - where the parties agree as to the characterisation of the conduct as professional misconduct – where the parties agree as to the appropriate sanction – whether the proposed sanction is appropriate PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – where s 126(1) of the Health Ombudsman Act 2013…