Health Ombudsman v Leinonen - [2021] QCAT 263

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Leinonen [2021] QCAT 263

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

LEA STIINA MAARIT LEINONEN

(respondent)

APPLICATION NO/S:

OCR412-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 August 2021 (ex tempore)

HEARING DATE:

4 August 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms April Blair
Dr Petrina Bowden

Dr Chun-Ming Chang

ORDERS:

1. 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.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent.

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is to pay a fine of $10,000 to the Health Ombudsman within three (3) months.

4. Pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009, publication of:

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

(b)   evidence given before the Tribunal; and

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

is prohibited to the extent that it could identify or lead to the identification of the patient or the complainant, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

5.       Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, the parties to this proceeding, or the Registrar or Judges of the Court of Appeal.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY PROCEEDINGS – where the respondent was a registered dental practitioner – where the respondent engaged in a relationship with a patient over the course of nine years – whether the conduct amounts to professional misconduct – what sanction should be imposed

Health Ombudsman Act 2013, s 4, s 103, 104
Health Practitioner Regulation National Law (Queensland), s 5, s 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Ombudsman v BBH [2021] QCAT 197
Health Ombudsman v Dower [2021] QCAT 177
Health Ombudsman v Gillespie [2021] QCAT 54
Health Ombudsman v Veltmeyer [2021] QCAT 77
Medical Board of Australia v DEL [2019] QCAT 63
Medical Board of Australia v Jones [2012] QCAT 362
Medical Board of Australia v Leggett [2015] QCAT 240
Medical Board of Australia v Trewren [2015] SAHPT 5
Psychology Board of Australia v Cameron [2015] QCAT 227

Psychology Board of Australia v Garcia [2015] VCAT 128

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

D Callaghan instructed by Hall & Wilcox

REASONS FOR DECISION

Introduction

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: [2021] QCAT 263
Decision Date

CaseChat Overview and Summary

This appeal concerns a health services complaint against Lea Stiina Maarit Leinonen, a registered dental practitioner, brought by the Health Ombudsman. The respondent does not contest a finding of professional misconduct. The legal issue before the Tribunal was what sanction should be imposed on the respondent for her professional misconduct. The Tribunal concluded that the respondent should be reprimanded and ordered to pay a fine of $10,000. The Tribunal considered the aggravating and mitigating factors of the case. The Tribunal found that the aggravating factors included the extent of the boundary violation over a period of years. There were mitigating factors including that the patient initiated the relationship, there was no evidence of predatory exploitative behaviour by the respondent, the patient was not vulnerable, and the respondent was vulnerable due to her physical impairment and sole carer status. The Tribunal considered the submissions of the parties and relevant cases. The Tribunal concluded that a reprimand and a substantial fine would sufficiently address the protective purposes of sanction. A suspension of registration would have a punitive effect well beyond what is required to meet those protective purposes and an unnecessary and undesirable negative effect on patient care. The Tribunal ordered that the respondent be reprimanded and pay a fine of $10,000.

Orders