Health Ombudsman v Masamba - [2019] QCAT 227

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Health Ombudsman v Masamba [2019] QCAT 227

PARTIES:

THE HEALTH OMBUDSMAN
(applicant)

v

GARIKAYI MASAMBA

(respondent)

APPLICATION NO/S:

OCR295-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 August 2019

HEARING DATE:

26 September 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:

Ms M Barnett
Mr J McNab
Mr M Halliday

ORDERS:

1.   Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent is found to have 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(3)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of 3 months, to take effect from a date to be agreed between the Health Ombudsman and the respondent provided such date is not later than three months from the date hereof.

4.   Pursuant to s 107(3)(b)(i) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule.

5. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies.

6.   Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), for the purposes of Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) the relevant review period for the conditions is 12 months, commencing from the date hereof.

7.   Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the registrant worked as a mental health nurse and engaged in an inappropriate relationship with a patient – where the registrant admitted professional misconduct – where parties agreed sanction – whether the agreed sanction was appropriate

Health Ombudsman Act 2013 (Qld), s 3, s 4 s 103, s 104, s 107
Health Practitioner Regulation National Law(Queensland), s 109, s 130, s 226

Attorney General v Bax (1999) 2 Qd R 9, cited
Health Care Complaints Commission v Do [2014] NSWCA 307, cited
Medical Board of Australia v Blomeley [2018] QCAT 163, cited
Medical Board of Australia v Fitzgerald [2014] QCAT 425, cited
Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited
Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited
Queensland Nursing Council v Dodd [2010] QDC 220, cited

Applicant:

L.M. Reibelt, solicitor instructed by the Office of the Health Ombudsman

Respondent:

O Denes, solicitor instructed by Denes Lawyers

REASONS FOR DECISION

The Referral

On 20 December 2017, the Health Ombudsman referred to the Tribunal disciplinary proceedings against the respondent, Mr Masamba. The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act2013 (Qld) (HO Act).
An amended referral was subsequently filed on 5 July 2018. The amended referral contained one…

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 227
Decision Date: 16 August 2019

CaseChat Overview and Summary

The case of Health Ombudsman v Masamba involved a mental health nurse who engaged in an inappropriate relationship with a patient, leading to disciplinary proceedings. The respondent admitted to professional misconduct, and the parties agreed upon a specific sanction. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the agreed sanction was appropriate in light of the respondent's actions.

The primary legal issue before the Tribunal was whether the agreed sanction, which included a reprimand and a three-month suspension of the respondent's registration, was suitable given the nature and circumstances of the misconduct. The Tribunal needed to consider the seriousness of the breach, the respondent's admissions, and the need to protect public interest and maintain professional standards.

In assessing the appropriateness of the sanction, the Tribunal took into account the respondent's admissions, the impact on the patient, and the respondent's previous unblemished record. The Tribunal found that the agreed sanction was appropriate as it reflected the seriousness of the misconduct and served to uphold public confidence in the nursing profession. The Tribunal also noted that the conditions attached to the respondent's registration would help ensure future compliance with professional standards.

The Tribunal ultimately found the respondent to have engaged in professional misconduct, imposed a reprimand, and suspended the respondent's registration for three months. The registration was also subject to specific conditions for a period of twelve months. The decision was made with the understanding that the agreed sanction balanced the need for deterrence and the respondent's rehabilitation. Each party was ordered to bear their own costs.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent is found to have 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(3)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of 3 months, to take effect from a date to be agreed between the Health Ombudsman and the respondent provided such date is not later than three months from the date hereof.

4. Pursuant to s 107(3)(b)(i) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule.

5. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies.

6. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), for the purposes of Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) the relevant review period for the conditions is 12 months, commencing from the date hereof.

7. Each party bear their own costs.

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:	The Health Ombudsman v Masamba [2019] QCAT 227
PARTIES:	THE HEALTH OMBUDSMAN (applicant)
v
GARIKAYI MASAMBA (respondent)
APPLICATION NO/S:	OCR295-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	16 August 2019
HEARING DATE:	26 September 2018
HEARD AT:	Brisbane
DECISION OF:	Judge Sheridan Assisted by: Ms M Barnett Mr J McNab Mr M Halliday
ORDERS:	1. *Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013* (Qld), the respondent is found to have 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(3)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of 3 months, to take effect from a date to be agreed between the Health Ombudsman and the respondent provided such date is not later than three months from the date hereof. 4. *Pursuant to s 107(3)(b)(i) of the Health Ombudsman Act 2013* (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule. 5. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies.** 6. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), for the purposes of Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) the relevant review period for the conditions is 12 months, commencing from the date hereof. 7. Each party bear their own costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the registrant worked as a mental health nurse and engaged in an inappropriate relationship with a patient – where the registrant admitted professional misconduct – where parties agreed sanction – whether the agreed sanction was appropriate Health Ombudsman Act 2013 (Qld), s 3, s 4 s 103, s 104, s 107 Health Practitioner Regulation National Law(Queensland), s 109, s 130, s 226 Attorney General v Bax (1999) 2 Qd R 9, cited Health Care Complaints Commission v Do [2014] NSWCA 307, cited Medical Board of Australia v Blomeley [2018] QCAT 163, cited Medical Board of Australia v Fitzgerald [2014] QCAT 425, cited Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited Queensland Nursing Council v Dodd [2010] QDC 220, cited
Applicant:	L.M. Reibelt, solicitor instructed by the Office of the Health Ombudsman
Respondent:	O Denes, solicitor instructed by Denes Lawyers