Health Ombudsman v RET - [2020] QCAT 204

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v RET [2020] QCAT 204

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

RET

(respondent)

APPLICATION NO/S:

OCR212-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 June 2020

HEARING DATE:

18 June 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC
Assisted by
Ms H Barker,
Dr K Forrester and,
Mr K Murphy.

ORDERS:
1.   The Tribunal decides that, in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.

2.   The Tribunal reprimands the respondent.

3.   The parties bear their own costs of this proceeding.

4. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of:

(a)    the contents of a document or other thing produced to the Tribunal;

(b)   evidence given before the Tribunal;

(c)    any order made or reasons given by the Tribunal.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – nurse stealing drugs from employer or obtaining them by dishonest conduct – criminal conviction – professional misconduct – medical and psychiatric conditions – self-medication – treatment obtained and conditions improved – working within conditions – whether suspension appropriate – whether additional conditions appropriate – whether non-publication order appropriate

Health Ombudsman Act 2013 s 103(1)(a), s 104
Queensland Civil and Administrative Tribunal Act 2009 s 66

Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v HSK [2018] QCAT 419
Health Ombudsman v Macdonald [2016] QCAT 473
Health Ombudsman v Mullins [2019] QCAT 339
Health Ombudsman v NLM [2019] QCAT 366
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92
Legal Services Commissioner v Yarwood [2015] QCAT 208
Legal Services Commission v XBV [2018] QCAT 332
Medical Board of Australia v Martin [2013] QCAT 376
Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403
Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249
Nursing and Midwifery Board of Australia v Tan [2019] SAHPT 1
R v Yarwood [2011] QCA 367

APPEARANCES & REPRESENTATION:

Applicant:

N Townsend of the Office of the Health Ombudsman

Respondent:

J Sibley of Sibley Lawyers

REASONS FOR DECISION

This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with that Act, I am sitting with assessors Ms H Barker, Dr K Forrester and Mr K Murphy.[1] The respondent is a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that the respondent engaged in professional misconduct, in that she stole from her employer, or otherwise obtained dishonestly, a quantity of Schedule 8 medication through the use of her position as a nurse.
[1]Health Ombudsman Act 2013 s 126; see s 127 for their function.

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: [2020] QCAT 204
Decision Date: 22 June 2020

CaseChat Overview and Summary

The Health Ombudsman sought disciplinary proceedings against a nurse, alleging professional misconduct. The dispute was heard by the Queensland Civil and Administrative Tribunal. The primary issue was whether the nurse's actions, which included stealing drugs from her employer, constituted professional misconduct. A secondary issue was whether a non-publication order should be made to protect the nurse's identity.

The Tribunal found that the nurse's conduct did constitute professional misconduct. It took into account her criminal conviction, the fact that she had self-medicated without proper authorisation, and the circumstances of her obtaining drugs. The Tribunal also considered the nurse's medical and psychiatric conditions, and the fact that her treatment had improved her condition and enabled her to work within her limitations. The Tribunal was satisfied that the nurse's misconduct warranted a reprimand, but it decided that a suspension was not necessary. The Tribunal also considered that a non-publication order was appropriate to protect the nurse's identity.

The Tribunal decided that the nurse had engaged in professional misconduct and reprimanded her. The Tribunal ordered that the parties bear their own costs and made a non-publication order to protect the nurse's identity.

Orders

Orders of the court

1. The Tribunal decides that, in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.

2. The Tribunal reprimands the respondent.

3. The parties bear their own costs of this proceeding.

4. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of:

(a) the contents of a document or other thing produced to the Tribunal;

(b) evidence given before the Tribunal;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.