Health Ombudsman v MBS - [2023] QCAT 551

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v MBS [2023] QCAT 551

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

MBS

(respondent)

APPLICATION NO/S:

0CR324-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 November 2023 (ex tempore)

HEARING DATE:

13 November 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson
Assisted by:
Ms H Barker, Nursing Panel Member
Ms D Blond, Public Panel Member
Mr B Dixon, Nursing Panel Member

ORDERS:

1.     The Tribunal finds that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

2.     Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

3.     Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on 16 May 2022 is set aside.

4.     No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent physically assaulted his daughter — where the common assault against the child constituted a contravention of a domestic violence protection order — whether the conduct constitutes professional misconduct — whether a suspension is punitive — what is the appropriate sanction

Criminal Code Act 1899 (Qld)

Family Law Act 1975 (Cth)
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal 2009 (Qld)

Health Ombudsman v Abela [2023] QCAT 312

Health Ombudsman V HCG [2020] QCAT 166
Health Ombudsman v JTM [2020] QCAT 394

Medical Board of Australia v Kaularis [2020] VCAT 38

Nursing and Midwifery Board Australia v GMR [2020] VCAT 157

APPEARANCES & REPRESENTATION:

Applicant:

D Dupree, Legal Officer of the Office of the Health Ombudsman

Respondent:

M Cooper, solicitor of Chelsea Emery & Associates

REASONS FOR DECISION

The referral filed by the applicant on 30 November 2022 contains one allegation, which is not contested by the respondent, who is and was at all relevant times a registered nurse. The respondent is currently 47 years old. He holds a Bachelor of Nursing and was first registered with the Nursing and Midwifery Board of Australia (‘Board’) on 11 January 2007. At the time of the conduct the subject of the referral he was employed on a casual basis at a private hospital on the Sunshine Coast. He is currently employed as a registered nurse in the public system.
The conduct underpinning the allegation is not contested. The parties agree that the conduct constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). The parties agree that a reprimand is appropriate. The applicant seeks a period of suspension of the respondent’s registration. Primarily because of the accepted high degree of insight and remorse demonstrated by the respondent since the conduct, evidenced by his conduct since and steps taken to address the underlying causes of his unprofessional behaviour. His lawyer submits that in the circumstances of this case, a period of suspension would…

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: [2023] QCAT 551
Decision Date: 13 November 2023 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against a nurse, alleging that the respondent's conduct constituted professional misconduct warranting disciplinary action. The primary incident involved the respondent physically assaulting his daughter, an act that also contravened a domestic violence protection order. The dispute centred on whether the assault constituted professional misconduct and, if so, what the appropriate disciplinary action should be.

The legal issues before the court included whether the respondent's assault on his daughter constituted professional misconduct under the Health Ombudsman Act 2013 (Qld) and whether a suspension of the respondent's registration was punitive or a suitable disciplinary measure. The court also had to consider the appropriate sanction for the respondent's actions.

In its decision, the Tribunal found that the respondent's conduct did indeed constitute professional misconduct as it contravened the professional standards expected of health care professionals. The Tribunal considered that the respondent's actions, particularly the physical assault on his daughter and the breach of the domestic violence protection order, reflected poorly on his professional integrity. The Tribunal determined that while a reprimand was necessary, a suspension was not appropriate as it was punitive. Instead, the Tribunal opted to set aside the immediate registration action imposed by the Health Ombudsman on 16 May 2022 and issued a reprimand to the respondent. The Tribunal made no order as to costs.

Orders

Orders of the court

1. The Tribunal finds that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

3. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on 16 May 2022 is set aside.

4. No order as to costs.

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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