Health Ombudsman v OOD - [2021] QCAT 388

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v OOD [2021] QCAT 388

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

OOD

(respondent)

APPLICATION NO/S:

OCR185-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson
Assisted by:
Ms Michelle Gunn
Ms Sharyn Hopkins
Dr Mary Sidebotham
Ms Nicolle Alexander
Mr Paul Murdoch

ORDERS:

1. Pursuant to section 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 section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013, the respondent is disqualified from applying for registration until 13 February 2022.

4. Each party is to bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSIONS – NURSE AND MIDWIFE – PROFESSIONAL MISCONDUCT – where respondent pleaded guilty in the Supreme Court of Queensland to a number of serious drug offences – where respondent was a party and not a principal in the offending which involved commerciality; where respondent was sentenced to 2 years imprisonment but released immediately on parole – where the respondent did not seek re-registration – where respondent has significantly addressed the underlying causes of her conduct and shows significant insight

SANCTION – where respondent is still on parole – where as a matter of principle any period disqualifying her from applying for registration should not end before she completes her sentence – where such an approach is consistent with notions of deterrence and protection of the public’s confident in the profession – where respondent has co-operated fully with justice system and regulator and in these proceedings.

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

Health Practitioner Regulation National Law (Queensland), s 5, s 41

Council for the Regulation of Health Care Professionals v General Dental Council & Anor [2005] EWHC 87
Health Ombudsman v Hills [2020] QCAT 516
Pharmacy Board of Australia v Kozanoglu (Review & Regulation) [2016] VCAT 1271

APPEARANCES & REPRESENTATION:

Applicant:

Office of the Health Ombudsman

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against OOD (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. The respondent has admitted the allegations in her Response and the parties have filed a Statement of Agreed Facts. The referral contains a single allegation related to the respondent’s plea of guilty in the Supreme Court of Queensland[1] to 12 offences under the Drugs Misuse Act 1986 and one offence under the

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 388
Decision Date

CaseChat Overview and Summary

The Health Ombudsman brought this application against OOD (the Respondent), who was a registered nurse and midwife. The applicant sought a finding that the Respondent’s conduct constituted professional misconduct, and sought sanctions. The Tribunal found that the Respondent’s conduct did constitute professional misconduct, and ordered that she be reprimanded and disqualified from applying for registration until 13 February 2022. The parties were ordered to bear their own costs.The Tribunal found that the Respondent’s conduct was substantially below the standard reasonably expected of a registered health practitioner. The Tribunal found that the Respondent’s conduct involved serious criminal offending in the form of possession of dangerous drugs for a commercial purpose. The Tribunal found that this conduct was harmful in nature, and demonstrated a serious departure from the required standard of conduct. The Tribunal found that the Respondent’s conduct damaged the reputation of the profession, and was inconsistent with the Code of Conduct for Midwives. The Tribunal found that the Respondent’s conduct was aggravated by the fact that it involved possession of dangerous drugs for a commercial purpose.The Tribunal found that in light of the Respondent’s remaining term of imprisonment, and the fact that the Respondent had not sought to re-register as a registered health practitioner, it was appropriate to disqualify her from applying for registration until 13 February 2022. The Tribunal found that this approach was consistent with important principles of deterrence and maintenance of public confidence in the profession. The Tribunal found that the Respondent had taken significant steps to address the underlying causes of her conduct, and that she was genuinely remorseful. The Tribunal found that it was highly unlikely that the Respondent would repeat her offending behaviour. The Tribunal found that ordinarily, the Respondent’s conduct would have justified a period of suspension of between three and six months. The Tribunal found that the appropriate sanction in these circumstances was a period of disqualification from applying for registration until 13 February 2022.

Orders