Health Ombudsman v MKL - [2022] QCAT 131

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v MKL [2022] QCAT 131

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MKL

(respondent)

APPLICATION NO/S:

OCR189-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 April 2022

HEARING DATE:

7 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC, assisted by
Dr E Chew,
Dr G Kelly,
Ms C Ashcroft.

ORDERS:

1.     The tribunal decides that the conduct in the referral constituted professional misconduct on the part of the respondent.

2.     The respondent is reprimanded.

3. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:

(a)     the contents of any document or thing produced to the Tribunal; and

(b)     the orders made and reasons given by the Tribunal; and

(c)     evidence before the Tribunal

to the extent that it could identify, or lead to the identification of the respondent, any family member of the respondent, any professional colleagues of the respondent, any victim of the respondent's offending, save as ls necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding.

4.     There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALT CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCES – Domestic violence offence and others – effect of mental illness – disciplinary history – whether professional misconduct – whether cancellation of registration appropriate – whether non-publication order appropriate.

Health Practitioner Regulation National Law s 5, s 52, s 55, s 73, s 74

Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104, s 107

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Barristers Board v Darveniza [2000] QCA 253
Health Ombudsman v NLM (No 2) [2019] QCAT 366
LCK v Health Ombudsman [2020] QCAT 316
Legal Services Commissioner v XBN [2016] QCAT 471
Medical Board of Australia v Duck [2017] WASAT 28
Medical Board of Australia v Wong [2015] QCAT 439
Medical Board of Queensland v DAP [2008] QCA 44
NSW Bar Association v Maddocks [1988] NSWCA 102
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld)(“the Act”) s 103(1)(a), s 104. Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Dr Eleanor Chew, Dr Glynn Kelly and Ms Carolyn Ashcroft in accordance with the Act.[1]
[1]Health Ombudsman Act 2013 (Qld) s 126. For their function, see s 127.
The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional…

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: [2022] QCAT 131
Decision Date: 26 April 2022

CaseChat Overview and Summary

The Health Ombudsman initiated disciplinary proceedings against MKL, a medical practitioner, in the Queensland Civil and Administrative Tribunal. The case arose from MKL's convictions for domestic violence, assault occasioning bodily harm, and stalking, along with his history of professional misconduct. The central issue was whether MKL's conduct constituted professional misconduct, warranting the cancellation of his registration, and if a non-publication order was appropriate to protect the identities of those involved.

The tribunal found that MKL's criminal conduct, particularly the domestic violence offence, along with his history of disciplinary issues, demonstrated a significant departure from professional standards. It was acknowledged that MKL's mental illness influenced his actions; however, this did not excuse the seriousness of his misconduct. The tribunal concluded that MKL's conduct constituted professional misconduct. Given the nature and severity of his actions, the tribunal decided against cancelling his registration but opted for a reprimand. Additionally, the tribunal imposed a non-publication order to safeguard the identities of MKL, his family, professional colleagues, and victims, except for necessary disclosures related to the proceedings or appeals.

The tribunal's decision highlights the importance of balancing the impact of mental health issues with the need to maintain professional standards in the medical field. By reprimanding MKL and imposing a non-publication order, the tribunal aimed to address the misconduct while protecting the privacy of those involved. The decision underscored the tribunal's approach to disciplinary actions in cases involving both criminal conduct and mental health considerations.

Orders

Orders of the court

1. The tribunal decides that the conduct in the referral constituted professional misconduct on the part of the respondent.

2. The respondent is reprimanded.

3. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:

(a) the contents of any document or thing produced to the Tribunal; and

(b) the orders made and reasons given by the Tribunal; and

to the extent that it could identify, or lead to the identification of the respondent, any family member of the respondent, any professional colleagues of the respondent, any victim of the respondent's offending, save as ls necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding.

4. There be 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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