Health Ombudsman v Pidgeon - [2022] QCAT 111

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Pidgeon [2022] QCAT 111

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

DANYON MICHAEL PIDGEON

(respondent)

APPLICATION NO/S:

OCR190-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 March 2022 (ex tempore)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Laura Dyer
Ms Harriet Barker

Dr Peter Glazebrook

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), in respect to allegation 1, the Tribunal decides that 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 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action is set aside.

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

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent is a registered nurse and pleaded guilty in the Magistrates Court to one count each of stealing as a servant, forgery and uttering, possession of dangerous drugs and unlawful possession of a restricted drug – where the respondent was sentenced to 9 months probation with no conviction recorded – where the respondent obtained the drugs illegally in his professional capacity as a nurse – where there is no disputes between the parties as to characterisation or sanction – whether the proposed sanction is appropriate

Health Ombudsman Act 2013 (Qld) s 66, 107

Health Practitioner Regulation National Law (Queensland) s 5

Craig v Medical Board of South Australia [2001] SAC 19

Health Ombudsman v CSM [2020] QCAT 55

Health Ombudsman v Ferguson [2020] QCAT 464

Health Ombudsman v Jamieson [2017] QCAT 172

Health Ombudsman v Keast [2020] QCAT 197

Health Ombudsman v Martin [2020] QCAT 350

APPEARANCES & REPRESENTATION:

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

The Director of Proceedings on behalf of the Health Ombudsman (the applicant) referred this health services complaint against Danyon Michael Pidgeon (the respondent) to the Tribunal by referral filed on 28 June 2021.
The applicant alleges that, as a result of the respondent’s pleas of guilty for criminal offences and/or regulatory offences in the Magistrates Court of Toowoomba on 29 April 2021, he has engaged in professional misconduct within the meaning of all three limbs of that concept as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
The respondent has been legally represented. His solicitors filed a response to the referral on 19 August 2021 in which he admits to all relevant allegations of fact and that his conduct amounts to professional misconduct. The parties have filed an agreed statement of facts. There are no areas of factual dispute.
In submissions filed by the parties, there is also agreement as to the characterisation…

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 111
Decision Date

CaseChat Overview and Summary

The matter before the Queensland Civil and Administrative Tribunal was a disciplinary proceeding brought by the Health Ombudsman against Danyon Michael Pidgeon, a registered nurse, following Pidgeon's guilty pleas to criminal offences of stealing as a servant, forgery and uttering, possession of dangerous drugs, and unlawful possession of a restricted drug. The Tribunal had to determine whether Pidgeon's conduct constituted professional misconduct as defined in the Health Practitioner Regulation National Law (Queensland), and if so, to determine the appropriate sanction. Both parties agreed on the characterisation of the conduct as professional misconduct and the appropriate sanction, which was a reprimand.

The Tribunal found that Pidgeon's conduct did indeed constitute professional misconduct as it was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Pidgeon's actions involved stealing controlled drugs in the course of his employment, attempting to conceal his actions by falsifying records, and placing his own desires above his professional responsibilities. The Tribunal noted Pidgeon's remorse, cooperation with the authorities, and lack of prior criminal or regulatory history as mitigating factors. However, the Tribunal emphasised the importance of protecting the public and maintaining professional standards, as well as general and personal deterrence.

Given the agreement between the parties on the characterisation of the conduct and the appropriate sanction, the Tribunal decided that a reprimand was an appropriate response in the circumstances. The Tribunal set aside the immediate registration action and ordered that each party bear their own costs for the proceeding.

Orders