Health Ombudsman v Russell - [2021] QCAT 188

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Russell [2021] QCAT 188

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

ANNE RUSSELL

(respondent)

APPLICATION NO/S:

OCR124-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 May 2021 (ex tempore)

HEARING DATE:

31 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Mr Stephen Lewis
Mr James McNab

Ms Margaret Ridley

ORDERS:

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

2. Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides, in relation to each of allegations 3, 4, 5, 6 and 7, that the respondent has behaved in a way that constitutes unprofessional conduct.

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

4. Pursuant to section 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended for a period of six (6) months.

5. Each party bears their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an enrolled nurse – where the respondent was convicted of traffic offences and social security fraud – whether such conduct should be characterised as professional misconduct – where the respondent failed to give the Nursing and Midwifery Board of Australia notice of relevant events in contravention of section 130 of the Health Practitioner Regulation National Law (Queensland) and made false statements as to her criminal history upon applications for renewal of registration as an enrolled nurse – whether such conduct should be characterised as unprofessional conduct – what sanction should be imposed – where the parties make joint submissions as to characterisation of conduct and orders for sanction – whether the Tribunal should depart from the agreed position of the parties

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 130

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Health Ombudsman v Armstrong [2018] QCAT 382

Health Ombudsman v Chaffey [2020] QCAT 54
Health Ombudsman v Henson [2020] QCAT 72
Health Ombudsman v Tang [2020] QCAT 165
Health Ombudsman v Tu [2020] QCAT 91
Health Ombudsman v Veltmeyer [2021] QCAT 77
Legal Services Commissioner v McLeod [2020] QCAT 371
Medical Board of Australia v Martin [2013] QCAT 376
Nursing and Midwifery Board of Australia v Morley [2014] SAHPT 17

Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1

APPEARANCES & REPRESENTATION:

Applicant:

M Jackson instructed by the Office of the Health Ombudsman

Respondent:

E Bassingthwaighte of Hall Payne Lawyers

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Anne Russell (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of…

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: [2021] QCAT 188
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was presented with a case brought by the Health Ombudsman against Anne Russell, a registered nurse, regarding allegations of professional misconduct and unprofessional conduct. The primary legal issues revolved around whether specific actions of the respondent constituted professional misconduct or unprofessional conduct, and if so, what sanctions should be imposed. Professional misconduct was defined under section 5 of the Health Practitioner Regulation National Law (Queensland), while unprofessional conduct was considered under the same act but without the same stringent criteria.

The Tribunal found that allegations 1 and 2, pertaining to the respondent's convictions for obstructing police and social security fraud, constituted professional misconduct. This conclusion was based on the deliberate and extensive nature of the dishonesty involved, which significantly deviated from the expected standards of an enrolled nurse. Allegations 3 through 7, concerning the respondent's failure to notify the Nursing and Midwifery Board of Australia of her criminal convictions and her false statements regarding her criminal history during registration renewals, were characterized as unprofessional conduct. This decision was made considering the repeated instances of non-compliance and the lack of any allegations of misconduct during her nursing practice.

In terms of sanctions, the Tribunal decided to reprimand the respondent and suspend her registration as an enrolled nurse for six months. This decision was influenced by the demonstrated remorse of the respondent, the absence of recent misconduct, and her positive professional reputation. Both parties agreed on the characterization of the conduct and the proposed sanctions, which the Tribunal accepted unless it was clearly inappropriate. The Tribunal also ordered that each party bear their own costs of the proceeding, in line with the usual practice under section 100 of the Queensland Civil and Administrative Tribunal Act 2009.

Orders