Health Ombudsman v RMJ - [2022] QCAT 459

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v RMJ [2022] QCAT 459

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:

13 October 2022 (ex tempore)

HEARING DATE:

13 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Dick SC

Assisted by:

Ms H Barker
Dr D Bodnar
Mr A Cameron
Dr E Chew

Mr P Zimon

ORDERS:

The Tribunal decides that:

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; and

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

The Tribunal orders that:

1. Pursuant to section 66 of the QCAT Act, publication of:

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

(b)     evidence before the Tribunal; and

(c)     the orders made, and reasons given by the Tribunal

is prohibited to the extent that it could identify, or lead to the identification of, the respondent, any patient or former patient of the respondent, any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or on any appeal therefrom, or save as is necessary for the applicant to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

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 pleaded 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)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

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…

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 459
Decision Date: 13 October 2022 (ex tempore)

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) presided over a disciplinary proceeding against RMJ, a medical practitioner and registered nurse, following their guilty plea to criminal charges of fraudulently writing prescriptions and stealing blank scripts to obtain opioid medications. Both parties submitted that the respondent’s conduct constituted professional misconduct and agreed on a reprimand as the appropriate sanction. The central issue before the Tribunal was whether the proposed sanction was appropriate given the circumstances of the case.

The Tribunal found that the respondent’s actions unequivocally constituted professional misconduct, in line with the parties’ joint submission. The Tribunal took into account the severity and deliberate nature of the respondent's conduct, their previous unblemished record, and the impact of their actions on public trust in the healthcare system. Despite the severity of the misconduct, the Tribunal considered the joint recommendation for a reprimand appropriate, noting the respondent's guilty plea, cooperation with authorities, and acknowledgment of wrongdoing. The Tribunal emphasised the importance of both deterrence and rehabilitation in its decision.

In light of the above, the Tribunal decided that RMJ had engaged in professional misconduct and ordered a reprimand. Additionally, each party was to bear their own costs for the proceeding. The Tribunal also issued an order prohibiting the publication of any information that could identify the respondent, any patient or former patient, or any family member of the respondent, except as necessary for the proceeding or for the Health Ombudsman to report to the Australian Health Practitioner Regulation Agency.

Orders

Orders of the court

The Tribunal decides that:

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; and

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

The Tribunal orders that:

1. Pursuant to section 66 of the QCAT Act, publication of:

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

(b) evidence before the Tribunal; and

is prohibited to the extent that it could identify, or lead to the identification of, the respondent, any patient or former patient of the respondent, any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or on any appeal therefrom, or save as is necessary for the applicant to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

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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