Health Ombudsman v RLR - [2023] QCAT 552

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v RLR [2023] QCAT 552

PARTIES:

HEATH OMBUDSMAN

(applicant)

v

RLR

(respondent)

APPLICATION NO/S:

OCR164-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 May 2023 (ex tempore)

HEARING DATE:

30 May 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Fiona Banwell
Ms Harriet Barker

Mr Kenneth Murphy

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (HO Act), the admitted conduct amounts to professional misconduct;

2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;

3. Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a health practitioner for a period of 4 years; and

4. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCIPLINARY PROCEEDINGS — where the respondent pleaded guilty to one count of indecent treatment of a child under 16 — where the respondent has a familial relationship with the victim — significant power imbalance and abuse of trust — whether the circumstances are properly characterised as exceptional — where the parties’ joint submissions are accepted — orders made by consent

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Penalties and Sentences Act 1992 (Qld)

Health Ombudsman v Flute [2021] QCAT 189

Health Ombudsman v Galloway [2022] QCAT 121
Health Ombudsman v Warren [2022] QCAT 124

Nursing and Midwifery Board of Australia v Burrows [2020] QCAT 164

APPEARANCES & REPRESENTATION:

Applicant:

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

Respondent:

J Magoffin, solicitor of Magoffin Law

REASONS FOR DECISION

The Tribunal has before it a disciplinary referral filed by the Director of Proceedings on behalf of the Health Ombudsman (‘Applicant’) on 29 June 2022. The respondent was a registered nurse (‘RN’) at the time of the conduct the subject of the referral. He was born on 8 September 1960, so is currently 62 years of age. He was first registered as a RN in Queensland on the 24 December 2013. Although registered as an enrolled nurse and a RN at the time of the impugned conduct, the respondent was not then employed.
His registration lapsed on or about 1 July 2021 after he failed to renew his nursing registration. On 14 February 2021, he was arrested and charged with one count of indecent treatment of a child under 16. He pleaded guilty to the offence before the Chief Judge of the District Court in the Cairns District Court on 9 March 2022 and was sentenced by his Honour to 12 months imprisonment wholly suspended for an operational period of two years.
The parties have filed an agreed statement of facts. There are no factual disputes between them. They agree that the respondent should be reprimanded and disqualified for applying for registration for a period of 4 years. The applicant submits that the range as indicated from the comparable cases…

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: [2023] QCAT 552
Decision Date: 30 May 2023 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against RLR in the Queensland Civil and Administrative Tribunal, alleging professional misconduct by RLR, a registered nurse, who had pleaded guilty to one count of indecent treatment of a child under 16 years of age. The victim was related to RLR, creating a significant power imbalance and a breach of trust. The Tribunal was tasked with determining whether the circumstances of the case were exceptional enough to warrant a specific outcome.

The legal issues before the Tribunal involved assessing whether the respondent's conduct warranted a finding of professional misconduct, and if so, what the appropriate disciplinary measures should be. Given the respondent's guilty plea and the familial relationship with the victim, the Tribunal needed to consider the nature and seriousness of the offence, the power imbalance, and the breach of trust inherent in the situation. The parties jointly submitted that the respondent's conduct warranted a finding of professional misconduct and proposed specific penalties.

The Tribunal accepted the joint submissions of the parties, finding that the respondent's conduct amounted to professional misconduct. The Tribunal issued a reprimand and disqualified the respondent from applying for registration as a health practitioner for a period of four years. The Tribunal did not make an order as to costs, as the matter was resolved by consent. This outcome reflects the seriousness of the misconduct, taking into account the power imbalance and breach of trust in the relationship between the respondent and the victim.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (HO Act), the admitted conduct amounts to professional misconduct;

2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;

3. Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a health practitioner for a period of 4 years; and

4. No order as to 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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