Health Ombudsman v Salmon - [2024] QCAT 426

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Salmon [2024] QCAT 426

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

LIAM JAMES GLENN SALMON

(respondent)

APPLICATION NO/S:

OCR260-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Ms F Banwell, Midwifery Panel Member
Mr S Lewis, Nursing Panel Member
Mrs K Thomson, Public Panel Member

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

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

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

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner for three (3) years from the date of this decision.

4. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent was convicted of offences involving child abuse and exploitation material — where the offending was relatively low level —where the conduct constitutes professional misconduct — where a period of disqualification is ordered — where there is a need to address personal and general deterrence — where the respondent is not practising as a nurse — reprimand

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Asinas; Asinas v the Medical Board of Australia [2021] QCAT 306

Health Ombudsman v Creagh-Scott [2019] QCAT 69
Health Ombudsman v Franklin [2021] QCAT 186
Health Ombudsman v Mak [2019] QCAT 24
Health Ombudsman v XPW [2021] QCAT 403

Health Ombudsman v YDU [2023] QCAT 893

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

This matter is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Liam James Glenn Salmon (‘respondent’). At all material times, the respondent held general registration as a nurse. At the time of the conduct that brings him before this Tribunal, he was a 21-year-old male who had no previous criminal convictions.
On 23 June 2022, the Queensland Police notified the Office of the Health Ombudsman that the respondent was being investigated for an offence involving the possession of child exploitation material. On 24 July 2022, he was charged with one offence of transmitting to himself child abuse material by using a carriage or service. On 31 July 2023, the respondent was convicted on his own plea of guilty in the Southport District Court to one count of using a carriage service to transmit child abuse material to himself.
On 8 March 2022, the respondent transmitted six files depicting child abuse material via Facebook Messenger between two accounts used by him. Five of the images were…

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: [2024] QCAT 426
Decision Date: 31 October 2024

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against Ms. Salmon, a registered nurse, in the Queensland Civil and Administrative Tribunal. The dispute arose from Ms. Salmon's convictions for offenses involving child abuse and exploitation material. The central issue was whether her conduct constituted professional misconduct under the Health Ombudsman Act 2013 (Qld), and if so, what the appropriate disciplinary action should be.

The tribunal considered the nature and gravity of Ms. Salmon's offenses, as well as the necessity for personal and general deterrence. It found that her conduct did indeed constitute professional misconduct. The tribunal acknowledged the relatively low level of the offending but emphasised the importance of maintaining the integrity of the nursing profession. Given that Ms. Salmon was not currently practising as a nurse, the tribunal ordered a reprimand and a period of disqualification from applying for registration as a health practitioner.

The tribunal's reasoning was grounded in the need to uphold public confidence in the nursing profession and to deter both the respondent and others from similar conduct. The tribunal determined that a three-year disqualification period was appropriate to achieve these objectives. The decision concluded with a reprimand for Ms. Salmon, without ordering any costs.

The tribunal ordered a reprimand and a three-year disqualification from applying for registration as a health practitioner, reflecting the balance between deterrence and the respondent's current status.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

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

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

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner for three (3) years from the date of this decision.

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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