Health Ombudsman v McAndrew - [2021] QCAT 266

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v McAndrew [2021] QCAT 266

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

NATHANIEL SCOTT McANDREW

(respondent)

APPLICATION NO/S:

OCR193-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 August 2021 (ex tempore)

HEARING DATE:

6 August 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Sharyn Hopkins
Mr Stephen Lewis

Mrs Fiona Petty

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 Tribunal reprimands the respondent.

3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the Tribunal cancels the respondent’s registration.

4. Pursuant to section 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited, until such time as he obtains registration as a registered health practitioner, or until the expiration of a period of five (5) years from the date of this order, from providing any health service.

5. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision of the Health Ombudsman to suspend the respondent’s registration dated 16 April 2018.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an registered nurse – where the respondent was convicted of offences of dishonesty committed during the course of his employment in the coronary care unit of a hospital – where the respondent dishonestly obtained money from vulnerable patients – where the respondent was also convicted of unlawful possession of prescribed drugs – whether the conduct should be characterised as professional misconduct – what sanction should be imposed – where the respondent’s registration has been suspended for longer than 3 years – whether the respondent’s registration should be cancelled – whether the respondent should be disqualified from applying for re-registration as a health practitioner for a period of time – whether the respondent should be prohibited from providing any or specified health services unless and until he obtains registration as a registered health practitioner

Health Ombudsman Act 2013 (Qld), s 4, s 62, s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Care Complaints Commission v Cecil [2020] NSWCATOD 121
Health Ombudsman v Cash [2020] QCAT 49
Health Ombudsman v Corocher [2020] QCAT 47
Health Ombudsman v Holden [2021] QCAT 196
Health Ombudsman v Horton [2021] QCAT 95
Health Ombudsman v HSK [2018] QCAT 419
Health Ombudsman v Patel [2019] QCAT 398
Health Practitioner’s Tribunal of South Australia v Morley [2014] SAHPT 17
Legal Services Commissioner v McLeod [2020] QCAT 371
Legal Services Commissioner v Yarwood [2015] QCAT 208

Nursing and Midwifery Board of Australia v Sotingco [2018] VCAT 1615

APPEARANCES & REPRESENTATION:

Applicant:

D Dupree of the Office of the Health Ombudsman

Respondent:

No…

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: [2021] QCAT 266
Decision Date

CaseChat Overview and Summary

The Tribunal was required to determine whether the conduct of the respondent, Nathaniel Scott McAndrew, constituted professional misconduct and, if so, what orders of sanction should be made. The Tribunal was also required to determine whether the decision of the Health Ombudsman to suspend the respondent’s registration should be set aside. The conduct of the respondent, in stealing credit cards from vulnerable patients and committing fraud, together with his unlawful possession of prescribed drugs, constituted professional misconduct. The Tribunal considered the purposes of sanction, including the protection of the public and the deterrence of the respondent and other members of the profession. The Tribunal concluded that the respondent’s conduct deserved denunciation, and accordingly, it reprimanded the respondent. The Tribunal also cancelled the respondent’s registration, finding that he was unfit to practise. The Tribunal declined to disqualify the respondent from applying for re-registration as it considered that the period of suspension had already served the purposes of sanction. The Tribunal made an order prohibiting the respondent from providing any health services until he obtained registration as a registered health practitioner or until five years had elapsed from the date of the order. The Tribunal also set aside the decision of the Health Ombudsman to suspend the respondent’s registration.
The Tribunal decided that the respondent had behaved in a way that constituted professional misconduct and made the following orders: (1) The Tribunal reprimands the respondent. (2) The Tribunal cancels the respondent’s registration. (3) The Tribunal does not disqualify the respondent from applying for re-registration. (4) The Tribunal prohibits the respondent from providing any health services until such time as he obtains registration as a registered health practitioner or until the expiration of a period of five years from the date of this order. (5) The Tribunal sets aside the decision of the Health Ombudsman to suspend the respondent’s registration dated 16 April 2018.

Orders