Health Ombudsman v McDowell - [2021] QCAT 402

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v McDowell [2021] QCAT 402

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

ROBERT STEVEN MCDOWELL

(respondent)

APPLICATION NO/S:

OCR227-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 November 2021

HEARING DATE:

29 November 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member JM Robertson
Assisted by:
Ms H Barker
Ms L Dyer
Mr P Davies

ORDERS:

1. A finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).

2. An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is reprimanded.

3. An order pursuant to section 107(3)(d) of the Health Ombudsman Act 2013 (Qld) that the respondent is suspended for a period of six (6) months.

4. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PROFESSIONAL MISCONDUCT – where respondent was a registered nurse – where he stole fentanyl from his employer over a period of months for his own use – where he falsified records to conceal his misconduct – where respondent has a number of mental health conditions – where he had engaged in similar conduct over a period of 2 weeks at an interstate hospital which did not lead to criminal charges but did lead to regulatory intervention – where respondent convicted on his plea of guilty of one count of stealing as a servant – whether his mental health condition reduces his moral culpability and the case is not a suitable vehicle for expressing general deterrence – where respondent has not practised as a nurse since 2018 but remains as a non-practising registered nurse – where parties agree that conduct amounts to professional misconduct and that a reprimand is a proper sanction – where applicant seeks a period of suspension of between 6-9 months to reflect deterrence and denunciation

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

Health Practitioner Regulation National Law (Queensland), s 5

Health Ombudsman v CSM [2020] QCAT 55
Health Ombudsman v Ferguson [2020] QCAT 464
Health Ombudsman v Jamieson [2017] QCAT 172
Health Ombudsman v NPT [2020] QCAT 267
R v Verdins [2007] 16 VR 269
R v Yarwood [2011] QCA 367

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton, instructed by the Office of the Health Ombudsman

Respondent:

B Mumford, instructed by Hall Payne Lawyers

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Robert Steven McDowell (respondent), pursuant to sections 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. The parties have agreed on a statement of facts and there are no factual issues in dispute. The relevant conduct related to the respondent’s conduct at his place of employment leading…

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 402
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was asked to determine whether the conduct of Robert Steven McDowell, a registered nurse, constituted professional misconduct. The Health Ombudsman (applicant) alleged that the respondent had stolen fentanyl from his employer over a period of months for his own use and falsified records to conceal his actions. The parties agreed that the respondent’s conduct amounted to professional misconduct and that a reprimand was an appropriate sanction. The applicant sought a period of suspension of between six and nine months to reflect deterrence and denunciation. The Tribunal found that the respondent’s conduct was serious and constituted professional misconduct. While the respondent had a history of mental health issues, including a major depressive disorder and a substance use disorder, the Tribunal did not accept that this reduced his moral culpability or made the case unsuitable for expressing principles of general deterrence. The Tribunal ordered that the respondent be reprimanded and suspended for a period of six months. The Tribunal also made no order as to costs.

Orders