Health Ombudsman v Quinn - [2021] QCAT 156

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Quinn [2021] QCAT 156

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

BENJAMIN MARK QUINN

(respondent)

APPLICATION NO/S:

OCR385-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 May 2021 (ex tempore)

HEARING DATE:

13 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Ms L Dyer
Mr S Lewis
Ms P Hall

ORDERS:

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

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent has a prior disciplinary history – where the respondent pleaded guilty to possessing dangerous drugs and stealing two ampoules of morphine – whether such conduct should be characterised as professional misconduct or unprofessional conduct – what sanction should be imposed – whether the respondent should be reprimanded or cautioned

Health Ombudsman Act 2013, s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Briginshaw v Briginshaw [1938] 60 CLR 336

Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167
Health Ombudsman v Britten [2020] QCAT 217
Health Ombudsman v CSM [2020] QCAT 55
Health Ombudsman v Gillespie [2021] QCAT 54
Health Ombudsman v Henson [2020] QCAT 72
Health Ombudsman v Jamieson [2017] QCAT 172
Health Ombudsman v McGill [2019] QCAT 399
Health Ombudsman v McGuinness [2020] QCAT 1
Health Ombudsman v Montalvo [2020] QCAT 317
Health Ombudsman v Tu [2020] QCAT 91
Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249
Pharmacy Board of Australia v the Registrant [2012] QCAT 515
Pharmacy Board of Australia v Thomas [2011] QCAT 637

Psychology Board of Australia v Cameron [2015] QCA 227

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton of Counsel, instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

This is a referral of a matter against Benjamin Mark Quinn (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 that the Tribunal make disciplinary orders against the respondent pursuant to section 107 of the HO Act.
In particular, the applicant submits that the Tribunal would decide that the respondent has behaved in a way that constitutes professional misconduct, and that the Tribunal would reprimand him. The respondent contends to the contrary, submitting that the Tribunal would instead decide that he has behaved in a way that constitutes unprofessional conduct and that he would be cautioned.
The applicant bears the onus of proof. It must satisfy the Tribunal of the matters which it contends; that is, the characterisation of the respondent’s conduct as professional misconduct and the appropriate orders for sanction to the standard…

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 156
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was required to decide whether Benjamin Mark Quinn's criminal convictions for possessing dangerous drugs and stealing two ampoules of morphine constituted professional misconduct under the Health Ombudsman Act 2013 (Qld). The Tribunal found that the respondent's conduct was a large and considerable departure from the standards expected of a registered nurse and therefore constituted professional misconduct. The Tribunal emphasised that the characterisation of conduct as professional misconduct depends on a qualitative assessment of the particular circumstances of the case, rather than a quantitative comparison with other cases.

The Tribunal considered that the respondent's conduct warranted a reprimand to meet the protective purposes of sanction, despite the considerable delay in determining the matter. The Tribunal noted the respondent's remorse, efforts towards rehabilitation, and the passage of time since the conduct as mitigating factors, but concluded that a caution would not adequately address the considerations of denunciation and general deterrence relevant to the protective purposes of sanction. The Tribunal found that a reprimand was necessary to meet those purposes and maintain public confidence in the nursing profession.

The Tribunal's decision and orders are set out in the reasons for decision. The Tribunal decided that the respondent had behaved in a way that constituted professional misconduct and ordered that he be reprimanded. The Tribunal did not order any further preclusion from practice, as the respondent would need to satisfy the Board as to his fitness to practice before being re-registered as a health practitioner.

Orders