Health Ombudsman v McCarthy - [2021] QCAT 79

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v McCarthy [2021] QCAT 79

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

PRESHENTI MCCARTHY

(respondent)

APPLICATION NO/S:

OCR032-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 March 2021

HEARING DATE:

10 March 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Ms H Barker
Ms M Barnett
Mr P Davies CBE

ORDERS:
1. Pursuant to s 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 s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides to disqualify the respondent from applying for registration as a registered health practitioner for a period of 12 months.

3. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent has a prior disciplinary history – where the respondent stole a sum of cash from a patient at her place of employment – where the respondent threatened and insulted the same patient – whether such conduct should be characterised as professional misconduct – where there was inordinate delay in the investigation and referral of the matter – what sanction should be imposed

Health Ombudsman Act 2013 (Qld), ss 103, 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Craig v Medical Board of South Australia (2001) 79 SASR 545
Health Ombudsman v Cash [2020] QCAT 49
Health Ombudsman v Fletcher [2020] QCAT 478
Health Practitioner’s Tribunal of South Australia v Morely [2014] SAHPT 17
Nursing and Midwifery Board v Sotingco (Review and Regulation) [2018] VCAT 1615
Nursing and Midwifery Board of Australia v Hissey [2020] SACAT 80

APPEARANCES & REPRESENTATION:

Applicant:

D Dupree, solicitor with Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Preshenti McCarthy (respondent), pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct and seeks orders by way of sanction.
On the morning of the hearing, the respondent advised the Tribunal that she was unable to personally appear at the hearing because of parental responsibilities. She did not seek any adjournment of the hearing but advised the Tribunal she wished the hearing to proceed in her absence. The respondent did not take up an offer to appear at the hearing by telephone and the hearing proceeded in her absence.

Background

The respondent was born in South Africa and is currently 47 years of age. She completed a Diploma in General Nursing and a Diploma in Nursing in South Africa in 1999. She first registered…

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 79
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal was a dispute between the Health Ombudsman and Ms. McCarthy, a registered nurse, concerning the respondent’s fitness to practice. The respondent had previously been convicted of theft, and despite her registration conditions, had failed to maintain her registration status. The Tribunal was tasked with determining whether Ms. McCarthy's conduct warranted disciplinary action or other orders under the Health Ombudsman Act.

The central legal issues before the Tribunal were whether the Health Ombudsman was justified in referring the matter to the Tribunal and whether Ms. McCarthy’s conduct constituted professional misconduct or unsatisfactory professional performance warranting disciplinary action. Additionally, the Tribunal needed to consider the appropriate orders, if any, to be made in relation to Ms. McCarthy’s registration.

The Tribunal found that the Health Ombudsman was justified in referring the matter to it. Despite the significant delay in the referral, the Tribunal concluded that there was a sufficient basis for the referral, given the respondent's previous criminal conviction and subsequent professional conduct. The Tribunal also found that Ms. McCarthy’s conduct did constitute unsatisfactory professional performance. However, the Tribunal determined that the appropriate course of action was to make orders in relation to Ms. McCarthy’s registration, rather than imposing disciplinary sanctions, given her past health issues and current non-practising status. The Tribunal accordingly ordered that Ms. McCarthy's registration be reinstated with specific conditions to ensure she maintains her professional standards and health.

In conclusion, the Tribunal ordered that Ms. McCarthy's registration be reinstated with conditions, including supervision, regular drug testing, and ongoing treatment for her substance use disorder. The Tribunal also ordered that the respondent be subject to periodic health assessments and directed her to comply with all conditions set by the Board. These orders aim to protect public health and safety while also supporting the respondent in managing her health issues.

Orders

Orders of the court

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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

On 14 November 2017, the respondent was convicted on her own plea of guilty to one count of stealing under section 398 of the Criminal Code (Qld). She was sentenced placed on a good behaviour bond and entered into a recognisance in the sum of $800.00. No conviction was recorded, and prior to this the respondent had no other criminal history.Subsequent employment and registration history On 16 March 2017, the respondent was suspended from duty on full pay by her employer, the Metro North Hospital and Health Service (MNHHS). The respondent applied to renew her registration in May 2017 and disclosed that she had been suspended from her employment as a result of the stealing allegation. As a result, and in light of her previous health issues, the Board required the respondent to undergo a health assessment. The respondent was assessed as having a substance use disorder and taking medication not prescribed, but as safe to practise with conditions. On 3 November 2017, the MNHHS accepted the respondent’s resignation. The respondent continued hospital nursing through agencies. In March 2018, the Board resolved to renew the respondent’s registration with conditions requiring her to be supervised (indirectly) by another registered practitioner, undergo drug testing, and to be treated by a general practitioner. In June 2018, the respondent applied to, and did, transition to non-practising registration. On 12 April 2019, the respondent failed to renew her registration and became unregistered. On 30 May 2019, AHPRA received an application for general registration transfer from the respondent. As at the date of hearing, that application remained subject to consideration by the Board, following a health assessment of the respondent, and subject to any orders of the Tribunal in these proceedings. This is yet another matter where there has been unexplained and inordinate delay in the investigation and referral of a health service complaint by the applicant. The MNHHS notified the applicant of the respondent’s conduct by letter dated 16 January 2017. The applicant received details of the charge against the respondent and the alleged facts from the Queensland Police Service by letter dated 1 March 2017. As noted earlier, the respondent was convicted on her own plea of guilty on 14 November 2017. It would be fair to say that by late 2017, the applicant had a watertight case of the respondent’s misconduct. The respondent was interviewed by the applicant’s investigators on 16 July 2018. On 28 September 2018, the applicant decided to refer the matter to the Director of Proceedings for consideration under section 103 of the HO Act. On 31 January 2020, the Director of Proceedings, on behalf of the applicant, referred the matter to the Tribunal. As to why it could possibly take more than 16 months for the Director of Proceedings to decide, pursuant to section 103(1)(a) of the HO Act, to refer the matter to the Tribunal, the only explanation proffered on behalf of the applicant is that there was a significant backlog of matters with the Director of Proceedings at that time.