Health Ombudsman v Mak - [2019] QCAT 24

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Mak [2019] QCAT 24

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

TSZ HONG MAK

(respondent)

APPLICATION NO/S:

OCR166-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 February 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Dr A Tuckett
Ms I Patane
Mr K MacDougall

ORDERS:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.

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

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of three years.

4. Each party bear their own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the practitioner was a registered nurse – where the practitioner was charged and convicted on his own plea of guilty of the possession of child exploitation material – where there was evidence that the respondent may have been suffering from an undiagnosed mental health condition at the time of the conduct - where the practitioner surrendered his registration – where the practitioner provided a sworn statement indicating that he had no intention of returning to the profession – where the parties have an agreed position on sanction – whether the sanction proposed is appropriate

Health Ombudsman Act 2013 (Qld), sch 1, s 4, s 36, s 103, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 146

R v Oliver [2002] EWCA Crim 2766, cited
Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323, considered
Medical Radiation Technologists Board of Queensland v Groves [2010] QCAT 528, considered
Pharmacist Board of Queensland v Gordon [2010] QCAT 181, considered
Psychology Board of Australia v Cameron [2015] QCAT 227, cited
Medical Board of Australia v Martin [2013] QCAT 376, cited

REPRESENTATION:
Applicant:

Director of proceedings, on behalf of the Health Ombudsman

Respondent:

Self-represented

APPEARANCES:

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

Background

The respondent was a registered health practitioner,[1] holding general registration as a nurse between 7 December 2004 and 14 October 2016. The respondent is no longer a registered health practitioner after surrendering his registration on 1 August 2016, which was accepted by the Nursing and Midwifery Board of Australia on 14 October 2016. This matter concerns criminal conduct by the respondent unrelated to the practice of his nursing profession, namely, the possession of child exploitation material by the respondent on 26 June 2011, constituting an indictable offence for which the respondent was sentenced in the District Court at Brisbane on 13 October 2015.
[1]As defined by Schedule 1 of the Health Ombudsman Act 2013 (Qld) and…

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 24
Decision Date: 20 February 2019

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against a registered nurse, Mak, alleging professional misconduct. Mak was charged and convicted of possession of child exploitation material, an offence under the Criminal Code. There was evidence suggesting Mak may have been suffering from an undiagnosed mental health condition at the time of the offence. Mak surrendered his registration and provided a statement indicating he had no intention of returning to the profession. Both parties agreed on the proposed sanction.

The central issue before the tribunal was whether the agreed sanction was appropriate. The tribunal considered the nature of the offence, Mak's conduct, his surrender of registration, and his statement of no intention to return to the profession. The tribunal also took into account the evidence of a possible undiagnosed mental health condition. The parties agreed that the appropriate sanction was a reprimand and a three-year disqualification from applying for registration.

The tribunal found that Mak's behaviour constituted professional misconduct. It concluded that the agreed sanction was appropriate given the circumstances. The tribunal accepted that the reprimand and three-year disqualification from registration were suitable to address the public interest in protecting the community and maintaining professional standards. Each party was ordered to bear their own costs of the proceedings.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.

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

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of three years.

4. Each party bear their own costs of the proceedings.

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 Mak [2019] QCAT 24
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
TSZ HONG MAK (respondent)
APPLICATION NO/S:	OCR166-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	20 February 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President Assisted by: Dr A Tuckett Ms I Patane Mr K MacDougall
ORDERS:	1. Pursuant to s 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 107(3)(a) of the *Health Ombudsman Act* 2013 (Qld), the respondent is reprimanded. 3. Pursuant to s 107(4)(a) of the *Health Ombudsman Act* 2013 (Qld), the respondent is disqualified from applying for registration for a period of three years. 4. Each party bear their own costs of the proceedings.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the practitioner was a registered nurse – where the practitioner was charged and convicted on his own plea of guilty of the possession of child exploitation material – where there was evidence that the respondent may have been suffering from an undiagnosed mental health condition at the time of the conduct - where the practitioner surrendered his registration – where the practitioner provided a sworn statement indicating that he had no intention of returning to the profession – where the parties have an agreed position on sanction – whether the sanction proposed is appropriate Health Ombudsman Act 2013 (Qld), sch 1, s 4, s 36, s 103, s 107 Health Practitioner Regulation National Law (Queensland), s 5, s 146 R v Oliver [2002] EWCA Crim 2766, cited Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323, considered Medical Radiation Technologists Board of Queensland v Groves [2010] QCAT 528, considered Pharmacist Board of Queensland v Gordon [2010] QCAT 181, considered Psychology Board of Australia v Cameron [2015] QCAT 227, cited Medical Board of Australia v Martin [2013] QCAT 376, cited
REPRESENTATION: Applicant:	Director of proceedings, on behalf of the Health Ombudsman
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).