Health Ombudsman v Manabat - [2022] QCAT 322

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Manabat [2022] QCAT 322

PARTIES:

director of proceedings on behlaf of the health ombudsman

(applicant)

v

GLyn manabat

(respondent)

APPLICATION NO/S:

OCR351-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 September 2022 (ex tempore)

HEARING DATE:

7 September 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

Assisted by:

Ms J Stuckey
Ms L Dyer
Mr A Tuckett

ORDERS:

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

3. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the decision of the Health Ombudsman to suspend the respondent’s registration dated 30 October 2020 is set aside.

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

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where respondent was a registered nurse in a secure mental health facility and met Patient A in the course of caring for her – where respondent contacted her on Facebook after her discharge and offered to supply her with illicit drugs – where he engaged in an inappropriate sexual relationship with her involving intercourse on one occasion – where he supplied her with a restricted drug – where he made a false declaration to police to distance himself from the patient – where the respondent was suspended from his employment and then his registration was suspended by immediate registration action by the Health Ombudsman – where respondent has taken significant steps to address the causes of his professional misconduct – where parties agree that the proved conduct amounts to professional misconduct and that the respondent should be reprimanded – where applicant seeks a further 3-6 months suspension of his registration – where respondent was convicted and sentenced in District Court for supply offences and making a false declaration – where he has no other disciplinary or criminal history – where the respondent is an experienced nurse who has shown considerable insight and remorse

Health Ombudsman Act 2013 (Qld) s 62, 107

Health Practitioner Regulation National Law (Qld) s 5, 41

Health Ombudsman v ADV [2020] QCAT 364

Health Ombudsman v HSK [2018] QCAT 419

Medical Board of Australia v DEL [2019] QCAT 63

Nursing and Midwifery Board of Australia v Bethune (Review and Regulation RR) [2021] VCAT 1476

Nursing and Midwifery Board of Australia v Gharie [2019] SAHPT 4

APPEARANCES & REPRESENTATION:

Applicant:

Dupree, D (Legal officer at the Health Ombudsman)

Respondent:

Robb, S (Counsel instructed by QNMU Law)

REASONS FOR DECISION

Before the Tribunal is a disciplinary referral filed by the Director of Proceedings on behalf of the Health Ombudsman (The applicant) on the 23rd of December 2021. The respondent is a registered nurse, having first being registered with the Nursing and Midwifery Board of Australia (The Board) on…

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 322
Decision Date

CaseChat Overview and Summary

The matter of Health Ombudsman v Manabat involved a registered nurse who engaged in a consensual relationship with a patient, Patient A, after her discharge from the Psychiatric Intensive Care Unit at a Queensland Hospital. The respondent's conduct included flirtatious behaviour, exchanging messages on Facebook, meeting on multiple occasions, and having sexual intercourse. The relationship also involved the exchange of illegal and prescription drugs, including instances where the respondent offered to provide Patient A with methylamphetamine and gamma-Hydroxybutyric. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the court centred on whether the respondent's conduct amounted to professional misconduct under the National Law. The respondent conceded that his conduct constituted professional misconduct as defined in section 5 of the National Law. The primary issue was the appropriate sanction to impose in response to the admitted professional misconduct.

The court considered the respondent's admissions, the nature of his misconduct, and the impact of his actions on Patient A and the broader community. The court found that the respondent's actions were serious and multifaceted, involving both boundary violations and criminal activity. The court determined that the appropriate sanction was a 12-month suspension of the respondent's registration, with a condition that he complete a professional development program before applying for reinstatement.

The final orders of the Tribunal were that the respondent’s registration as a registered nurse be suspended for a period of 12 months, commencing on the 30th of October 2020. The respondent was also required to complete a professional development program before applying for reinstatement. The respondent was also ordered to pay costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

He is 46 years of age. The referral contains two interrelated allegations; the first relating to certain criminal convictions, and the other relating to boundary violations with a patient. The parties agree that the conduct which is admitted in the statement of agreed facts filed with the Tribunal[1] amounts to professional misconduct as defined in section 5 of the National Law. [1]Hearing Brief (HB) page 15-20.Background The allegations concern the respondent’s inappropriate relationship with Patient A, which conduct was serious and multifaceted. She was an in-patient at the Psychiatric Intensive Care Unit at a Queensland Hospital from the 25th of January 2020 until the 30th of January 2020. She was admitted to the unit, having experienced a psychotic episode in a public place which had involved her exhibiting paranoid, aggressive, and sexualised behaviour on that particular day. At that time, the respondent worked as a registered nurse at the Secure Mental Health Rehabilitation Unit in the relevant Hospital. He was involved in the care and treatment of Patient A during her admission, during which time the respondent and Patient A developed a close relationship which included flirtatious behaviour. After her discharge, the respondent and Patient A engaged in a consensual relationship. They exchanged messages on Facebook and met on approximately six occasions. They had sexual intercourse on one occasion, or about the 1st of February 2020, at Patient A’s home. The content of the Facebook messages included references to the respondent and Patient A using illegal and prescription drugs (cannabis, ‘ice’, and ‘oxy’), and on three occasions, the respondent offering to provide Patient A with methylamphetamine and gamma-Hydroxybutyric. On the 15th of February 2020 while the respondent and Patient A were at the shops, police arrived at her home in relation to another matter. Soon after, the respondent and Patient A returned to her home. She provided a false name to police and was placed under arrest and obstructed and actually bit police. Patient A was found to have three pregabalin tablets in her handbag which the respondent had given her during the visit. He signed a police statement setting out falsely that he had met Patient A at a local hotel a few days earlier. Following Patient A’s arrest on the 15th of February 2020, the respondent accessed Patient A’s hospital records on multiple occasions, checking for updates on her whereabouts. On the 10th of July 2020, the respondent was suspended from his position as a registered nurse at the Secure Mental Health Rehabilitation Unit at the relevant Hospital. On the 14th of July 2020, his employer notified the Health Ombudsman of the respondent’s then alleged sexual misconduct with Patient A, and on the 30th of October 2020, the Health Ombudsman took immediate action and suspended the respondent’s registration as a registered nurse. The respondent did not seek to review this action and the suspension of his registration remains in place.

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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