Health Ombudsman v ORC - [2020] QCAT 181

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v ORC [2020] QCAT 181

PARTIES: Health Ombudsman

(applicant)

v

ORC

(respondent)

APPLICATION NO/S:

OCR284-18

MATTER TYPE:

Occupational regulation matters

DATE OF DECISION:

2 October 2019

FURTHER ORDER AND DIRECTION:

22 June 2020

DATE OF REASONS:

22 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:
Dr D Wardle
Dr E Weaver
Mr B Thomas

ORDERS (2.10.2019):

FURTHER ORDER (22.06.2020):

DIRECTION (22.06.2020):

1. Pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes unprofessional conduct;

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; and

3.   Each party bear their own costs of the proceeding.

Pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009, publication of:

(a)    the contents of a document or thing filed in or produced to the Tribunal;

(b)   evidence given before the Tribunal; and

(c)    any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent, or the respondent, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld) and for the purposes of the following direction.

These reasons are to be provided to the Australian Health Practitioners Regulation Agency and the Medical Board of Australia for consideration of whether the Tribunal’s order of reprimand of the respondent should remain any longer on the register.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent medical practitioner was employed as an intern at the sexual health service clinic of a public hospital – where the respondent committed a boundary violation with a patient of the clinic – where the boundary violation was at the lower end of range of seriousness – whether the respondent’s conduct should be characterised as professional misconduct or unprofessional conduct – where the parties agree as to the characterisation of the conduct and sanction – whether the proposed sanction is appropriate – where there was undue delay in prosecution of the disciplinary proceedings – whether a non-publication order should be made anonymising the orders and reasons of the Tribunal

Health Ombudsman Act 2013 (Qld), s 66, s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

J v L&A Services Pty Ltd (No.2) [1995] 2 Qd R 10

Medical Board of Australia v Dolar [2012] QCAT 271
Medical Board of Australia v Waldron [2017] QCAT 443
LSC v XBV [2018] QCAT 332
Health Ombudsman v Kimpton [2018] QCAT 405
Health Ombudsman v Agnola [2019] QCAT 193
John Fairfax Group Pty Ltd v Local Court of New South…

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: [2020] QCAT 181
Decision Date

CaseChat Overview and Summary

In this case, the Queensland Civil and Administrative Tribunal heard a disciplinary proceeding against a medical practitioner, ORC, who had been found to have engaged in unprofessional conduct with a patient. The Health Ombudsman referred the matter to the Tribunal, which determined that ORC had breached professional boundaries with a patient, constituting unprofessional conduct. Both parties agreed that the appropriate characterisation of the conduct was unprofessional conduct rather than professional misconduct. The Tribunal found that the delay in the resolution of the matter, which was not attributable to ORC, had a significant mitigating effect and accepted the agreed sanction of a reprimand. The Tribunal ordered that ORC be reprimanded and that each party bear their own costs. The Tribunal also made a non-publication order to protect the identity of the patient and ORC, considering the significant delay in the resolution of the matter. These reasons are to be provided to the Australian Health Practitioners Regulation Agency and the Medical Board of Australia for consideration of whether the Tribunal's order of reprimand should remain on the register.

The final orders of the Tribunal were that ORC be reprimanded for unprofessional conduct, each party bear their own costs, and publication of the contents of a document or thing filed in or produced to the Tribunal, evidence given before the Tribunal, and any order made or reasons given by the Tribunal be prohibited to the extent that it could identify or lead to the identification of any patient of the respondent, or the respondent, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman's functions under the Health Ombudsman Act 2013 (Qld). The Tribunal also directed that these reasons be provided to the Australian Health Practitioners Regulation Agency and the Medical Board of Australia for consideration of whether the Tribunal's order of reprimand of the respondent should remain any longer on the register.

Orders