Health Ombudsman v Powell - [2022] QCAT 112

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Powell [2022] QCAT 112

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

JODIE MAREE POWELL

(respondent)

APPLICATION NO/S:

OCR110-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 April 2022

HEARING DATE:

8 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Mr Peter Davies
Ms Laura Dyer

Mr Stephen Lewis

ORDERS:

1.     The respondent is found to have behaved in a manner that constitutes professional misconduct.

2.     The respondent is reprimanded.

3.     The respondent’s registration as a nurse is cancelled.

4. Pursuant to section 107(4)(a) of the Health Ombudsman Act, the respondent is disqualified for reapplying for registration as a nurse until 13 December 2027.

5.     Each party is to bear their own costs of the proceedings.

6.     The application for a non-publication order is refused save insofar as it involves the names of the deceased and female foster child.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent nurse pleaded guilty in the Queensland Supreme Court to one count of manslaughter and two counts of assault occasioning bodily harm whilst armed in company – where the conduct was committed against her foster child and not in her professional capacity as a nurse – where the respondent was sentenced to nine years imprisonment for the manslaughter charge – where parties are in agreement regarding factual matters and characterisation of the conduct – whether the respondents registration should be cancelled or suspended and for how long the period of cancellation or suspension should be

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent submitted for a non-publication order for the respondent, her foster children and her partner – where the applicant opposes the order - where the responded has significant mental health concerns – whether a non publication order should be made

Health Ombudsman Act 2013 (Qld) s 107

ABC v D1 and Ors; ex parte the Hearld and Weekly Times Ltd [2007] VSC 480

Health Ombudsman v CSM [2020] QCAT 55

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v Le [2020] QCAT 170

McBride v Walton [1994] NSWCA 199

Medical Board of Australia v Jansz [2011] VCAT 1026

APPEARANCES & REPRESENTATION:

Applicant:

D Dupree, Principal Legal Officer at the Office of the Health Ombudsman

Respondent:

JR Jones and GE Deveraux, instructed by Gilshenan and Luton Lawyers

REASONS FOR DECISION

This proceeding is concerned with an application by the Director on behalf of the Health Ombudsman (applicant). The applicant seeks various orders concerning Jodie Maree Powell (respondent). The relief sought by the applicant initially, was as follows:
(a)Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decide that the respondent had behaved in a way that constitutes professional misconduct.
(b)Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent be reprimanded.
(c)Pursuant to section 107(3)(e) of the Health Ombudsman…

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 112
Decision Date

CaseChat Overview and Summary

The Health Ombudsman has brought this proceeding against Jodie Maree Powell, a registered nurse, seeking a range of orders in respect of her registration as a nurse. The Tribunal found that the respondent had behaved in a manner that constitutes professional misconduct and was properly reprimanded. The Tribunal found that the respondent’s registration as a nurse ought to be cancelled and that she be disqualified from reapplying for registration until 13 December 2027. The Tribunal refused the application for a non-publication order save insofar as it involved the names of the deceased and a female foster child.

The Tribunal was asked to consider whether the respondent’s registration as a nurse ought to be cancelled or suspended and if so, for how long. The Tribunal was asked to consider the respondent’s mental health issues and the extent to which they were relevant to her offending and any future risk she might pose to the public or patients. The Tribunal found that the respondent’s conduct, both prior to and on the day of the death of the male foster child, was so serious as to indicate a serious defect of character. The Tribunal found that the respondent’s conduct was inconsistent with the obligations and expectations of the nursing profession and that it was not sensible to regard the respondent’s conduct as an error of judgment. The Tribunal was also of the view that the respondent’s mental health issues, while relevant, did not excuse her conduct. The Tribunal found that the respondent’s registration ought to be cancelled and that she be disqualified from reapplying for registration until 13 December 2027.

The Tribunal also considered the respondent’s application for a non-publication order. The Tribunal found that the respondent had failed to place sufficient material before the Tribunal to warrant a non-publication order being made. The Tribunal did, however, make a limited non-publication order in respect of the names of the deceased and a female foster child.

Orders