Health Ombudsman v RCM - [2022] QCAT 59

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v RCM [2022] QCAT 59

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

RCM

(respondent)

APPLICATION NO/S:

OCR 187-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 February 2022 (ex tempore)

HEARING DATE:

23 February 2022

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President
Assisted by:
Dr J Cavanagh
Dr F Walden
Mr M Halliday

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) in respect of Allegations 1, 2, 3 and 4, the Respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld) the Respondent is disqualified from applying for registration as a registered health practitioner for a period of six (6) years from the date of this order.

3. Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld) the Respondent is prohibited from providing any health service, whether provided as a public or private service, including the following health services, until such time as the Respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of a State or Territory of Australia:

(a)     Counselling;

(b)     Therapy

(c)     Psychotherapy;

(d)     Any other mental health service

4.     No order as to costs.

5. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act2009, 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 the respondent, any patient of the respondent or their family, save as provided for in the terms of this order and save as is necessary for the parties to engage in and progress these proceedings.

6.     Any material affected by the nonpublication order shall not be copied or inspected without an order of the Tribunal except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to this proceeding.

7.     If the medical records of the respondent, any patient of the respondent or any family member of such patient are included in the material, such records shall be provided to the Tribunal in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is not to be copied or inspected without an order of the Tribunal except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to this proceeding.

8.     The hearing brief shall be placed in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is not to be copied or inspected without an order of the Tribunal except by a judicial member,…

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 59
Decision Date

CaseChat Overview and Summary

The Health Ombudsman referred disciplinary proceedings against the respondent psychiatrist to the Queensland Civil and Administrative Tribunal, pursuant to section 103(1)(a) of the Health Ombudsman Act 2013 (Qld). The referral contained allegations that the respondent had engaged in inappropriate relationships with three patients. The respondent admitted each of the allegations and the matter proceeded on the basis of a statement of agreed facts and an agreed position as to sanction. The Tribunal accepted that the respondent’s conduct in respect of each of the four allegations was professional misconduct within the meaning of that term in the National Law. The parties proposed a sanction which involved a finding of professional misconduct, a disqualification from applying for registration as a registered health practitioner for six years from the date of the order and a prohibition on the respondent providing health services until he is registered. The Tribunal accepted that the proposed sanction was an appropriate one. The respondent sought the continuation of an interim non-publication order as a final order. The Tribunal accepted that the order was necessary to avoid endangering the respondent’s physical or mental health or safety and was otherwise in the interests of justice. The Tribunal made orders finding the respondent’s conduct to be professional misconduct, disqualifying him from applying for registration as a registered health practitioner for six years and prohibiting him from providing health services until he is registered. The Tribunal also made a non publication order prohibiting the publication of information that could identify the respondent, any patient of the respondent or their family.

Orders