Health Ombudsman v Ling (No 2)
[2023] QCAT 260
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Ling (No 2) [2023] QCAT 260
PARTIES:
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN (applicant)
v
SIMON LING (respondent)
APPLICATION NO/S:
OCR144-19
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
26 July 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC, assisted by:
Dr J Cavanagh, Dr J Osborne and Ms M RidleyORDERS:
1. The respondent is reprimanded.
2. The registration of the respondent is cancelled.
3. The respondent is disqualified from applying for registration for a period of three years from the date of this decision.
4. The respondent is to pay the applicant’s costs of the proceeding, fixed in the sum of $85,000.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – OTHER PARTICULAR CASES – inappropriate prescribing – inadequate records – material provided to the applicant and in affidavit filed in Tribunal about another practitioner – some of material recklessly false – sanction
Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104
Health Ombudsman v Ling [2023] QCAT 92
Medical Board of Australia v de Silva [2016] QCAT 63
Medical Board of Australia v Martin [2013] QCAT 376
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:
C Wilson instructed by the Office of the Health Ombudsman
Respondent:
D Callaghan instructed by HWEL Ebsworth, solicitors
REASONS FOR DECISION
The respondent is and was at all material times a registered medical practitioner, and hence a health practitioner for the purposes of the Health Ombudsman Act 2013 (Qld) (“the Act”). The applicant alleged that he was guilty of professional misconduct in that he failed to maintain a proper standard in the provision of clinical care, and that he deliberately or recklessly provided false and misleading information in communications with the Office of the Health Ombudsman and with the Australian Health Practitioner Regulation Agency (“AHPRA”), and in an affidavit sworn and filed in the Tribunal. Following a hearing, on 13 April 2023 the Tribunal made findings as to the relevant conduct, and as to its characterisation, and adjourned the proceeding for the receipt of submissions as to sanction.[1]
[1]Health Ombudsman v Ling [2023] QCAT 92.
Subsequently the Tribunal received a joint submission as to sanction from the parties. The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31]. I do not propose to depart from the outcome proposed by the parties,[2] which is as set out in this decision.
[2]So far as it relates to sanction. The findings, and the decision that the conduct amounted to professional misconduct, have already been made.
The background of the respondent, the details of the relevant conduct and the circumstances in which it occurred are all set out in the reasons for the earlier decision, and need not be repeated. It was obvious enough, from seeing Dr X in the witness box, that the conduct had a significant adverse effect on him, and on his career, as one would expect. The joint submissions referred to the decisions of Tribunals in Medical Board of Australia v Waldron [2017] QCAT 443, Psychology Board of Australia v Sweeney [2019] QCAT 134,[3] Medical Board of Australia v Anwar (No 2) [2020] VCAT 462, and Nursing and Midwifery Board of Australia v Ramayanam [2023] QCAT 90. These show that the proposed sanction is within range.
[3]In this matter the agreed period of disqualification was adjusted because of the delay between the hearing on the papers and the making of the decision. An order for costs, which was not agreed, was refused.
One aspect of the proposed outcome that concerned me somewhat was the proposed order for costs, fixed in what struck me as a large sum. There were two reasons for this concern. First, orders for costs in matters of this nature have been unusual since the issue came to be governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102, following the repeal of the Health Practitioner Regulation National Law s 195.[4] Second, the submissions in justification of the amount were expressed in a way which gave rise to some concern as to whether the Tribunal was being asked to make an order covering the costs of matters which were outside the scope of the power conferred by that Act, which refers in s 100 to the ”costs for the proceeding”.
[4]For the approach under s 195, see Lee v Medical Board of Australia (No 2) [2016] QCAT 321 at [47].
Subsequently the parties advised that all of the costs claimed related to the costs for the proceeding:
The costs of the proceedings as agreed between the parties have been calculated as a proportion of the costs incurred by the applicant during the proceedings and does not include any costs of investigation of the complaint. The reference to ‘costs of investigation’ in paragraph 9 of the joint submission was not meant as a reference to how the costs have been calculated but rather a reference to large volume of material that was obtained prior to the referral of the matter to the Tribunal required to substantiate the recklessness and lack of good faith in allegations 30 to 38 of the referral.
In the circumstances I am content to make an order for costs, on the basis that it was provided for in joint submissions on sanction, and in those circumstances the interests of justice require the order, in the light of the reasoning in the authorities referred to earlier. The decision of the Tribunal on sanction is therefore as follows:
1.The respondent is reprimanded.
2.The registration of the respondent is cancelled.
3.The respondent is disqualified from applying for registration for a period of three years from the date of this decision.
4.The respondent is to pay the applicant’s costs of the proceeding, fixed in the sum of $85,000.
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