Health Ombudsman v Ndlovu - [2022] QCAT 135

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Ndlovu [2022] QCAT 135

PARTIES:

Director of proceedings on behalf of the helath ombudsman

(applicant)

v

mEDium ndlovu

(respondent)

APPLICATION NO/S:

OCR267-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 April 2022 (ex tempore)

HEARING DATE:

20 April 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Anthony Tuckett
Margaret Ridley
Harriet Barker

ORDERS:

1.     The conduct of the respondent in relation to allegations 1 and 2 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act2013 (Qld).

2.     Pursuant to section 107(3)(a) of the Health Ombudsman Act2013 (Qld) the respondent is reprimanded.

3.     Pursuant to section 107(3)(e) of the Health Ombudsman Act2013 (Qld), the respondent’s registration is cancelled.

4. Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act2013 (Qld), the respondent is prohibited from providing health service in a paid or unpaid capacity in a clinical or non-clinical capacity until such time as she obtains registration as a health practitioner.

5.     No orders as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent registered nurse contravened conditions imposed on her registration to practice only under supervision – where the respondent made various false and misleading statements to the board – where the respondent suffered from psychiatric disorders – where the respondent has not engaged in the proceedings or provided the Tribunal material to suggest she is a fit and proper person – whether the respondents registration should be cancelled

Health Ombudsman Act2013 (Qld) s 107

Health Practitioner National Law 2009 s 8

Health Ombudsman v Powell [2022] QCAT 112

Health Ombudsman v Tang [2020] QCAT 165

Healthcare Complaints Commission v Moslemi [2020] NSWCATOD 2

Legal Services Commission v Yarwood [2015] QCAT 2008

Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340

Nursing Midwifery Board v INZ [2016] VCAT 99

Psychology Board of Australia v Wakelin [2014] QCAT 516

APPEARANCES & REPRESENTATION:

Applicant:

N Townsend, Principal Legal Officer at the Office of the Health Ombudsman

Respondent:

No Appearance

REASONS FOR DECISION

This proceeding is concerned with an application by the health ombudsman seeking the following findings and orders:
(a)a finding that the conduct of the respondent in allegations 1 and 2 constitutes professional misconduct under the Health Ombudsman Act 2013 (Qld);
(b)an order pursuant to 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is reprimanded;
(c)an order pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled
(d)an order pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld) that the respondent is prohibited from providing a health service in a paid or unpaid capacity in a clinical or non-clinical capacity until such time as she obtains registration as a health practitioner; and
(e)that there be no orders as to costs.
For the reasons that follow the findings and orders of the tribunal are:
(a)a…

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 135
Decision Date

CaseChat Overview and Summary

The Health Ombudsman v Ndlovu case involved an application by the Health Ombudsman seeking findings and orders related to the professional misconduct of a registered nurse, Medium Ndlovu. The application sought a finding that Ndlovu's conduct constituted professional misconduct, a reprimand, cancellation of her registration, a prohibition on providing health services until re-registration, and no orders as to costs. The case was heard by Judicial Member R Jones, assisted by Anthony Tuckett, Margaret Ridley, and Harriet Barker. The central legal issues were whether Ndlovu's conduct amounted to professional misconduct and whether her registration should be cancelled or suspended. The court found that Ndlovu's conduct, which included breaching conditions of her registration and making false statements, constituted professional misconduct. Given the seriousness of her actions and uncertainty about her current fitness to practice due to ongoing mental health issues, the tribunal concluded that cancellation of her registration was appropriate. The orders included a finding of professional misconduct, a reprimand, cancellation of registration, a prohibition on providing health services until re-registration, and no orders as to costs.

Orders