Health Ombudsman v Liu - [2022] QCAT 427

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Liu [2022] QCAT 427

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

SHUQUAN LIU

(respondent)

APPLICATION NO/S:

OCR199-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 October 2022 (ex tempore)

HEARING DATE:

24 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Dick

Assisted by:

Mr Mark Crain
Mr Michael Halliday

Ms Margaret MacDonald

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 Respondent is reprimanded.

3. No order as to costs.

4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate action taken by the Health Ombudsman is set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – Chinese Medicine Practitioner – where the respondent practitioner is a registered Chinese Medicine Practitioner – where the respondent was treating a child diagnosed with Type 1 diabetes – where the respondent accepts, he provided inappropriate advice and inappropriately managed the treatment of the child – where the parties have submitted a joint position with respect to characterisation of the conduct and sanction – whether the proposed sanction is appropriate in all of the circumstances

Health Ombudsman Act 2013 (Qld) s 107

CMBA v Lim [2012] VCAT 1614
Dental Board of AustraliavAbdullah [2016] VCAT 19
Dental Board of Australia v Dr Fun (Review and Regulation) [2019] VCAT 287
Medical Board of Australia v Pin [2021] QCAT 242
Medical Board v Davis [2018] VCAT 215

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)

REASONS FOR DECISION

In the matter of Director of Proceedings on behalf of the Health Ombudsman and Shuquan Liu, the background of the matter is there is an agreed statement of facts. The respondent is a registered health practitioner, being a Chinese medicine practitioner.
In June 2017, the respondent undertook the clinical treatment and management of a three-year-old child, the patient, who presented to him with a recent history of hospitalisation and a diagnosis of type 1 diabetes mellitus.
The patient presented on 8 June 2017, and the treatment period lasted for five days until she was again hospitalised on 12 June 2017. On admission, the patient was alert, with normal cognitive state and appeared well-hydrated. Her heart rate was lower than expected, blood pressure was stable. She had a normal blood glucose reading and elevated blood ketone level. Her weight was 11.2 kilograms and below the first percentile for her age, which would not support the suggestion that she should be on a restricted diet.
She was treated with intravenous fluids of normal saline and dextrose for blood glucose, ketone monitoring and insulin therapy. By the next morning, her condition had improved and she was recovering well. These observations have…

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: [2022] QCAT 427
Decision Date: 24 October 2022 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against Liu, a registered Chinese Medicine Practitioner, regarding his treatment of a child with Type 1 diabetes. The Ombudsman argued that Liu provided inappropriate advice and management for the child's condition, resulting in professional misconduct. Both parties agreed on the characterization of the conduct and the proposed sanction. The primary legal issue before the court was whether the proposed sanction was appropriate given the circumstances.

The court examined the nature of Liu's misconduct, noting that while he acknowledged his inappropriate advice and management, he also demonstrated remorse and a commitment to improve his practice. The court considered the impact of Liu's actions on the child and weighed this against his otherwise unblemished record and the joint submission of the parties. Given these factors, the court concluded that a reprimand was an appropriate sanction.

In its decision, the Tribunal found Liu to have engaged in professional misconduct. The court imposed a reprimand, considering it a suitable response to Liu's actions while allowing him to continue his practice with a formal warning. The court also set aside the immediate action taken by the Health Ombudsman, finding it unnecessary given the imposed sanction. No order was made as to costs.

Orders

Orders of the court

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 Respondent is reprimanded.

3. No order as to costs.

4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate action taken by the Health Ombudsman is set aside.

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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