Health Ombudsman v Riek - [2017] QCAT 173

CITATION:	The Health Ombudsman v John Christopher Riek [2017] QCAT 173
PARTIES:	The Health Ombudsman (Applicant)
v
John Christopher Riek (Respondent)
APPLICATION NUMBER:	OCR124-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Hon J B Thomas AM QC, Judicial Member Assisted by: Mr Michael Halliday Ms Ibi Patane Ms Jocelyn Toohill
DELIVERED ON:	5 June 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. A finding is recorded that the respondent on 13 July 2013 engaged in professional misconduct in that the respondent engaged in unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; 2. The respondent is reprimanded; 3. It is ordered that there be no order for costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where respondent practitioner stole schedule 8 medication from his employer – where the respondent was convicted of 1 count of stealing as a servant in the Magistrates Court in relation to that conduct – where respondent earlier diagnosed with ADD, major depressive disorder and generalised anxiety disorder – where evidence and submissions dealt with whether respondent impaired in practising due to suffering from a substance abuse disorder – where impairment due to substance abuse disorder not an element of any charges brought by Health Ombudsman – whether the practitioner engaged in professional misconduct or unprofessional conduct – whether Tribunal should have regard to impairment due to substance abuse disorder – whether reprimand, suspension or disqualification an appropriate sanction – whether an order as to costs should be made Health Ombudsman Act 2013 (Qld) ss 36, 96, 103, 107 Health Practitioner Regulation National Law Act 2009 (Qld) Divisions 1-4, schedule 1 Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70 Health Ombudsman v Antley [2016] QCAT 472 Health Ombudsman v MacDonald [2016] QCAT 473 Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

This is a referral by the Health Ombudsman of a notification concerning the conduct of a registered nurse. The referral is made under section 103(1)(a) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).
The relevant misconduct consisted of the respondent stealing a drug (Fentanyl) from his employer, the Princess Alexandra Hospital, and self-administering some of it. He was subsequently convicted in September 2013 of stealing as a servant.
The notification which originated these proceedings is to be treated as a complaint.[1] It was referred to the health Ombudsman on 4 November 2014.
[1]HO Act s 36; Health Practitioner Regulation National Law Act 2009 (Qld) Divisions 1-4, schedule 1.
The Health Ombudsman referred the matter to QCAT on 9 August 2016.
The orders that may be made in this matter are those…

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: [2017] QCAT 173
Decision Date: 5 June 2017

CaseChat Overview and Summary

The Health Ombudsman filed proceedings against the respondent, a registered medical practitioner, in relation to an incident where he stole schedule 8 medication from his employer. The respondent was convicted of one count of stealing as a servant in the Magistrates Court. The Health Ombudsman argued that the respondent's conduct constituted professional misconduct and unprofessional conduct under the Health Practitioner Regulation National Law (Victoria). The respondent had previously been diagnosed with attention deficit disorder, major depressive disorder, and generalised anxiety disorder. The case hinged on whether the respondent's impairment due to a substance abuse disorder should be considered in determining the appropriate disciplinary action.

The central legal issues before the tribunal were whether the respondent's conduct constituted professional misconduct or unprofessional conduct, and if so, what sanctions should be imposed. Additionally, the tribunal had to consider whether it should take into account the respondent's substance abuse disorder, which was not an element of the charges brought by the Health Ombudsman. The tribunal also needed to determine whether a reprimand, suspension, or disqualification from practice was appropriate and whether an order for costs should be made.

The tribunal found that the respondent's actions on 13 July 2013 amounted to professional misconduct, specifically engaging in unprofessional conduct that fell substantially below the standard reasonably expected of a practitioner with equivalent training or experience. Despite the respondent's diagnosed mental health conditions and substance abuse disorder, the tribunal emphasised that these did not excuse the misconduct. The tribunal ordered that the respondent be reprimanded and that no order for costs be made. This decision reflects a balance between acknowledging the respondent's personal struggles and upholding the standards expected of health practitioners.

Orders

Orders of the court

1. A finding is recorded that the respondent on 13 July 2013 engaged in professional misconduct in that the respondent engaged in unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;

2. The respondent is reprimanded;

3. It is ordered that there be no order for costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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