Health Ombudsman v RMJ - [2023] QCAT 539

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v RMJ [2023] QCAT 539

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

RMJ

(respondent)

APPLICATION NO/S:

OCR055-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 March 2023 (ex tempore)

HEARING DATE:

6 March 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Dick SC

Assisted by:

Dr J Cavanagh
Dr J Quinn
Ms F Banwell
Ms L Dyer

Mr B Taylor

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Each party to the proceeding is to bear their own costs for the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT — where the respondent was a medical practitioner and registered nurse — where the practitioner plead guilty to various criminal offences relating to fraudulently writing prescriptions and stealing blank scripts to obtain opioid medications — where the parties made a joint submission regarding characterisation and sanction — whether the proposed sanction is appropriate in all the circumstances

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT — where the respondent was a medical practitioner and registered nurse — where the practitioner plead guilty to various criminal offences relating to fraudulently writing prescriptions and stealing blank scripts to obtain opioid medications – where the parties made a joint submission regarding characterisation and sanction — whether the proposed sanction is appropriate in all the circumstances

Health Ombudsman Act2013 (Qld) s 107

Health Practitioner Regulation National Law (Queensland) s 5

Queensland Civil and Administrative Tribunal Act 2009 s 66

Health Ombudsman v CLT (No 2) [2019] QCAT 379

Health Ombudsman v JLK [2020] QCAT 487

McBride v Walton [1994] NSWCA 1999

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

I gave an ex-tempore judgement in this matter on the 13th of October 2022. Since then, it has become apparent that one of the assessors appointed to assist the Tribunal was not properly qualified and consequently, the Tribunal lacked jurisdiction to deal with the matter. Today the Tribunal, properly constituted, convenes to deal with the matter.
Between 26 June and 29 August 2019, the respondent (both a medical practitioner and a registered nurse) engaged in 15 instances of stealing blank prescriptions from her workplace, fraudulently writing a prescription in the name of a patient for an opioid pain relief medication and either using her details or that of a colleague as the prescribing doctor and later presenting the prescription to a pharmacy and obtaining the medication. The respondent was convicted in the Magistrates Court of 60 criminal offences relating to this conduct. She was fined $5,000…

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 539
Decision Date: 6 March 2023 (ex tempore)

CaseChat Overview and Summary

In the matter of the Health Ombudsman v RMJ, the Tribunal was tasked with considering disciplinary action against RMJ, a medical practitioner and registered nurse, who had pleaded guilty to various criminal offences related to the fraudulent writing of prescriptions and the theft of blank scripts to obtain opioid medications. The matter was brought before the Tribunal following joint submissions by the parties regarding the appropriate characterisation of the misconduct and the suitable sanction. The Tribunal had to decide whether the proposed sanction was appropriate in all the circumstances.

The primary legal issues before the Tribunal were the characterisation of the respondent's misconduct and the appropriateness of the proposed sanction. The Tribunal was required to consider the nature and severity of the misconduct, the respondent's criminal convictions, and the joint submissions made by the parties. The Tribunal needed to ensure that the sanction imposed was commensurate with the seriousness of the misconduct and served the purposes of disciplinary proceedings.

In delivering its decision, the Tribunal found that the respondent's conduct constituted professional misconduct. The Tribunal considered the criminal offences and the dishonest and unethical nature of the respondent's actions, which undermined public confidence in the medical profession. Despite the joint submissions, the Tribunal found that a reprimand was sufficient to address the misconduct while also considering the respondent's guilty plea and cooperation with the investigation. The Tribunal ordered that RMJ be reprimanded and that each party bear their own costs for the proceeding.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Each party to the proceeding is to bear their own costs for the proceeding.

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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