Health Ombudsman v Pin - [2021] QCAT 242

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Pin [2021] QCAT 242

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

HUGUES PIN

(respondent)

APPLICATION NO/S:

OCR230-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 July 2021 (ex tempore)

HEARING DATE:

21 July 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Dr Jennifer Cavanagh
Dr Eleanor Chew OAM

Mr Peter Davies CBE

ORDERS:

1. Pursuant to section 107(2)(b)(i) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides in respect of Allegation 1 that the respondent has behaved in a way that constitutes unsatisfactory professional performance.

2. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides in respect of Allegations 2 to 7 that the respondent has behaved in a way that constitutes professional misconduct.

3. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical practitioner specialising as a general practitioner – where the respondent left a piece of catheter and optical fibre in a patient’s leg following a varicose vein procedure – where the respondent failed to provide appropriate follow-up care – whether such conduct amounts to unsatisfactory professional performance, unprofessional conduct or professional misconduct– what sanction should be imposed

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where there was significant delay by the Office of the Health Ombudsman in the investigation and prosecution of the matter – whether a non-publication order should be made anonymising the respondent

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

Health Practitioner Regulation National Law (Queensland), s 5, s 193, s 193A

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

Health Ombudsman v Agnola [2019] QCAT 193

Health Ombudsman v Gillespie [2021] QCAT 54
Health Ombudsman v ORC [2020] QCAT 181
Health Ombudsman v Veltmeyer [2021] QCAT 77
Medical Board of Australia v Davis [2018] QCAT 215

Psychology Board of Australia v Cook [2014] QCAT 162

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson instructed by the Office of the Health Ombudsman

Respondent:

R O’Gorman instructed by Avant Law

REASONS FOR DECISION

This is the referral of a health service complaint against Hugues Pin (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant seeks findings that the respondent has engaged in unsatisfactory professional performance and professional misconduct and consequent orders by way of sanction.
The parties are agreed as to the facts of the conduct the subject of the referral, its appropriate characterisation as unsatisfactory professional performance and professional misconduct, and appropriate orders as to sanction. Nevertheless, it remains for the Tribunal to satisfy itself as to those matters according to the standard of proof enunciated by the High Court in Briginshaw v…

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 242
Decision Date

CaseChat Overview and Summary

The Health Ombudsman (applicant) filed a referral with the Queensland Civil and Administrative Tribunal (the Tribunal) seeking findings that the respondent, Hugues Pin, had engaged in unsatisfactory professional performance and professional misconduct. The Tribunal accepted the submissions of both parties as to the characterisation of the respondent's conduct as unsatisfactory professional performance and professional misconduct and as to the appropriate orders of sanction. The Tribunal found that the respondent had engaged in unsatisfactory professional performance in failing to ascertain the length of the catheter and optical fibre retained in a patient's leg, and in failing to inform the patient of the retained catheter and optical fibre, any risks to her health associated with such retention, and any treatment options available to her. The Tribunal found that the respondent had engaged in professional misconduct by failing to inform the patient of the retained catheter and optical fibre, any risks to her health associated with such retention, and any treatment options available to her on multiple occasions and by failing to refer her to another practitioner for the purpose of investigating the retained catheter. The Tribunal decided that an appropriate order of sanction was that the respondent be reprimanded. The Tribunal refused the respondent's application for a non-publication order.

Orders