Health Ombudsman v Mickan, Curtis Shae
[2023] QCAT 533
•4 December 2023
| [2023] QCAT 533 |
| QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL |
| DICK, Judicial Member |
| Assisted by (if required): |
| DR NELSON |
| MR HALE |
| MS THOMSON |
| No OCR 114 of 2023 |
| HEALTH OMBUDSMAN |
| Applicant |
| v |
| MICKAN, Curtis Shae |
| Respondent |
| BRISBANE |
| MONDAY, 4 DECEMBER 2023 |
| REASONS FOR DECISION |
JUDICIAL MEMBER: This is the matter of the Director of Proceedings on behalf of the Health Ombudsman (‘the applicant’) and Curtis Shae Mickan (‘the respondent’). The applicant referred this matter to the Tribunal on 28 May 2023. The applicant seeks that the Tribunal make disciplinary orders against the respondent pursuant to the Health Ombudsman Act 2013 (Qld) (‘the HO Act’).
At all material times, the respondent was:
(a)registered as a pharmacist with the Pharmacy Board of Australia; and
(b)a health service provider within the meaning of s 8(a)(i) of the HO Act.
On 16 May 2021, the respondent was charged with a number of serious criminal offences. On 17 June 2021, the Health Ombudsman took immediate registration action and suspended the respondent’s registration.
On 9 February 2023, the respondent entered pleas of guilty to seven domestic violence offences:
(a)one count of common assault;[1]
(b)one count of choking, suffocation or strangling in a domestic setting;[2]
(c)three counts of assault occasioning bodily harm;[3]
(d)one count of wilful damage;[4] and
(e)one count of arson.[5]
[1] Criminal Code 1899 (Qld) (‘Code’) s 335.
[2] Ibid, s 315A(1).
[3] Ibid, s 339(1).
[4] Ibid, s 469(1).
[5] Ibid, s 461(1)(a).
He was sentenced to seven years’ imprisonment with a parole-eligibility date fixed at 15 September 2023, and a conviction was necessarily recorded. The respondent’s full-time sentence will expire on 16 May 2028. The parties have submitted a statement of agreed facts, and there are no factual issues in dispute. The respondent has admitted his conduct amounts to professional misconduct. However, it is still for the Tribunal to exercise an independent discretion to determine:
(a)whether the respondent behaved in a way that constitutes professional misconduct;[6] and
(b)the appropriate disciplinary sanction.[7]
[6] HO Act s 107(2)(b).
[7] Ibid, s 107(3).
The Facts
On 15 May 2021, the respondent, after binge drinking, returned home where he had a verbal disagreement with his pregnant partner. He then destroyed property in the house and assaulted her. Police were called. The respondent was detained and taken to the watch-house where a protection order was made barring him from returning to the house or contacting his partner. After he was released, and in contravention of the order, he returned to the house where his partner and her mother were situated. After collecting his phone and wallet, he then backed his car out of the garage and two gas bottles stored under the house were turned on. He poured petrol on his partner’s car and set it alight. The car was destroyed, and the house was damaged. This was objectively serious conduct.
Firstly, it has been observed that violent behaviour against women in a domestic situation is abhorrent. Secondly, it would be difficult to imagine that violence, arson and breaching a protection order so soon after it was made, would not fall substantially below the standard which might reasonably be expected of a practitioner of an equivalent standard of training or experience. In addition, it is conduct inconsistent with the respondent being a fit and proper person to hold registration. The conduct is properly characterised as professional misconduct.
Health, Insight and Remorse/Future Risk
Insight is an important consideration for the Tribunal as:
The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination.[8]
[8] Medical Board of Australia v Jansz [2011] VCAT 1026 (‘Jansz’), [368].
Whether a registrant truly understands the error of his or her ways is relevant.[9]
[9] Law Society of New South Wales v Walsh [1997] NSWCA 185, p 42.
The respondent obtained a report dated 10 December 2022 from Dr Michael Beech, a psychiatrist, prepared for the criminal proceedings. The report notes that the respondent:
(a)has an anxiety disorder with panic attacks that could not be clearly related to the conduct;
(b)has an alcohol use disorder which flares up with stress;
(c)was under an overwhelming burden of stress in the time of the conduct;
(d)has avoidant personality traits, a tendency to suppress frustrations and resentments, which he then lets out in an immature, retaliatory fashion;
(e)this was the first time that his behaviour escalated to physical violence, but there was a pattern of property damage;
(f)the avoidant traits lead to a repeated pattern of domestic aggression;
(g)he expressed regret, remorse and shame for his conduct;
(h)he accepted responsibility for his actions;
(i)he described a sense of having disappointed his family, wife and local community;
(j)he was then in custody, and the alcohol use disorder was in remission due to his environment; and
(k)his anxiety disorder had settled.
Concerningly, he continued to express to Dr Beech that some responsibility lay with his partner in that she had provoked him by calling him pathetic. Clearly, this did not correspond with his rather superior view of himself and his place in the community.
The respondent provided a letter of apology during criminal proceedings, and this is taken into account.
Sanction
The disciplinary proceedings are protective, not punitive in nature. The Tribunal has been referred to case comparatives which are provided for guidance, but not to be followed blindly. The Tribunal has also been pointed to cases that adapt a general principle that where a practitioner has been convicted of serious criminal offences, the practitioner should not be permitted to resume his profession until he has completed his sentence. That means, until he has completed his full-time sentence, not until the time he is released on parole. When considering the cases and the range of sanctions, the Tribunal must consider that each matter is unique in its own facts and circumstances.
The applicant seeks a reprimand, which is not a trivial penalty, and has the potential for serious adverse implications to a professional person.
It is also submitted by the applicant that preclusion from practice is required, and that this should be achieved by cancellation rather than suspension. The Tribunal agrees with that proposition because there is nothing before the Tribunal at the moment to suggest that he could be considered a fit and proper person to hold registration, and therefore his registration should be cancelled so that it will necessitate him reapplying when and if he can establish that his rehabilitation is such that he could then be considered a fit and proper person. Further, this will give the respondent time within the community to obtain treatment for any underlying conditions and rehabilitate himself within the community, and will also serve as a deterrence to other practitioners. General deterrence is an important issue in this case.
The Ombudsman has suggested that the period of disqualification for applying, should be for a period of five to six years to fulfil the intent of general deterrence. The Tribunal agrees.
The orders made by the Tribunal are as follows:
1. 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);
2. pursuant to s 173A of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
3. pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled;
4. pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of five and a half years;
5. pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration order imposed is set aside; and
6. no order as to costs.
0