Health Ombudsman v Saurels - [2021] QCAT 264

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Saurels [2021] QCAT 264

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

LEIGH WILLIAM SAURELS

(respondent)

APPLICATION NO/S:

OCR053-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 August 2021

HEARING DATE:

5 August 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
Ms J Feeney
Mr A Petrie
Ms M Ridley

ORDERS:

1.       The Tribunal decides that the conduct of the respondent the subject of the referral amounted to professional misconduct.

2.       The Tribunal reprimands the respondent.

3.       The parties are to pay their own costs of the referral.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – fraud on Pharmaceutical Benefits Scheme – professional misconduct – practitioner’s registration not renewed by AHPRA – whether period of disqualification from applying for registration appropriate

Health Ombudsman Act 2013 ss 103, 104, 107

Health Ombudsman v Kong [2020] QCAT 281
Medical Board of Australia v Phan [2018] VCAT 1324
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92
Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1
Pharmacy Board of Australia v Hopkinson [2018] VCAT 982
Psychology Board of Australia v Nguyen [2011] VCAT 2437

APPEARANCES & REPRESENTATION:

Applicant:

N J Townsend of the Office of the Director of Proceedings

Respondent:

Self-represented

REASONS FOR DECISION

This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104. In accordance with the Act s 126, I have been assisted by assessors Ms J Feeney, Mr A Petrie and Ms M Ridley.
The respondent was at the relevant time a registered health practitioner, being a pharmacist. The applicant alleges that the respondent behaved in a way which constituted professional misconduct, in that he obtained a sum of money from the Commonwealth dishonestly by lodging false claims for payment under the Pharmaceutical Benefits Scheme.
In this matter the applicant has put before the Tribunal a quantity of material, and provided an outline of submissions to the Tribunal. The respondent has not provided any material to the Tribunal, but has made submissions in writing to the Tribunal, and appeared and made submissions by videolink during the hearing. The respondent did not contest the basis of the referral, but made submissions about the appropriate sanction.

Background

There is no statement of agreed facts, but the following facts emerge from the material placed before the Tribunal by the applicant. The respondent was born in 1959 and was first registered as a pharmacist in 1981. At the relevant time he was operating a pharmacy business he owned in a Brisbane shopping centre. He was approved to supply pharmaceutical benefits pursuant to the National Health Act 1953 (Cth). Ordinarily that is done by dispensing to a customer who presents the appropriate prescription medication at a significantly reduced cost. The balance can then be claimed by…

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 264
Decision Date

CaseChat Overview and Summary

The Health Ombudsman brought disciplinary proceedings against Leigh William Saurels, a pharmacist, for professional misconduct, which involved the dishonest submission of six false claims for payment under the Pharmaceutical Benefits Scheme. The Tribunal was satisfied that the conduct amounted to professional misconduct. The Tribunal was satisfied that the respondent had insight into his wrongdoing and was remorseful, and the Tribunal was of the view that the risk of reoffending was low. The Tribunal was satisfied that the term of imprisonment the respondent had served was sufficient as a general deterrent, and that the health and safety of the public would be protected if the Tribunal did not disqualify the respondent from applying for registration for a period of time. The Tribunal did not consider it appropriate in the circumstances to impose a period of disqualification from registration on the respondent. The Tribunal decided that a reprimand was appropriate, and ordered that the respondent be reprimanded. Both parties were ordered to bear their own costs of the proceeding.

Orders