Health Ombudsman v Shemer - [2019] QCAT 53

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Shemer [2019] QCAT 53

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

LOGAN SHEMER

(respondent)

APPLICATION NO/S:

OCR206-2018

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 February 2019 (ex tempore)

HEARING DATE:

18 February 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:
Dr J Cavanagh
Dr J Osborne
Mrs F Petty

ORDERS:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that 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(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes conditions on the registration of the respondent in accordance with the attached Schedule of Conditions.

4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, Part 7, Division 11, Subdivision 2 applies to the conditions.

5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is two (2) years.

6.   There be no order as to costs.

7.   The respondent may file one (1) copy in the Tribunal and serve one (1) copy on the applicant of any application for any further non-publication order, and any submissions in support therefore by Friday, 22 February 2019.

8.   The applicant may file one (1) copy in the Tribunal and serve one (1) copy on the respondent of any submissions in response by Wednesday, 27 February 2019.

9.   Any further application for any further non-publication order will be determined by the Tribunal on the papers.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – SANCTION - where the respondent doctor self-prescribed various controlled and restricted drugs – where the conduct involved dishonesty – where the use of the controlled and restricted drugs adversely affected the respondent’s work performance – where the respondent pleaded guilty to a number of criminal offences in relation to the conduct – where the respondent’s registration was suspended for some 20 months pursuant to immediate action taken by the Medical Board of Australia - where the respondent voluntarily entered into an undertaking with the Medical Board of Australia placing limits on his practise – where the undertaking led to the revocation of the suspension and enabled the respondent to return to practise – where the respondent has complied with the undertaking – where the respondent has engaged in extensive rehabilitative activities – where the respondent has shown insight - where the respondent admits that the conduct amounts to professional misconduct – where the parties provided joint submissions as to sanction – whether the proposed sanction is appropriate

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – SANCTION – where an extended period of suspension of the respondent’s registration was imposed pursuant to immediate action taken by the Medical Board of Australia -…

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: [2019] QCAT 53
Decision Date: 18 February 2019 (ex tempore)

CaseChat Overview and Summary

The Health Ombudsman sought a determination from the Tribunal that the respondent, a medical practitioner, had engaged in professional misconduct and an appropriate sanction. The respondent admitted that he had self-prescribed various controlled and restricted drugs, which adversely affected his work performance, and that the conduct amounted to professional misconduct. The Tribunal was required to decide the appropriate sanction for the misconduct, having regard to all relevant matters, including the respondent's compliance with an undertaking that had placed limits on his practice and the extensive rehabilitative activities he had undertaken.

The Tribunal considered the factors relevant to determining the appropriate sanction, including the nature and extent of the misconduct, the respondent's insight and remorse, and the impact of the misconduct on the community and the medical profession. The Tribunal noted that the respondent had pleaded guilty to criminal offences in relation to the conduct, his registration had been suspended for some 20 months, and he had voluntarily entered into an undertaking with the Medical Board of Australia. The Tribunal also considered the joint submissions of the parties as to the appropriate sanction. The Tribunal found that a reprimand and conditions on the respondent's registration were appropriate sanctions.

The Tribunal ordered that the respondent be reprimanded and that conditions be imposed on his registration for a period of two years. The Tribunal declined to make an indication of what the appropriate sanction would be absent the period of suspension, finding that it was not appropriate to do so. The Tribunal also made orders as to costs and the filing and service of any further non-publication orders.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that 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(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes conditions on the registration of the respondent in accordance with the attached Schedule of Conditions.

4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, Part 7, Division 11, Subdivision 2 applies to the conditions.

5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is two (2) years.

6. There be no order as to costs.

7. The respondent may file one (1) copy in the Tribunal and serve one (1) copy on the applicant of any application for any further non-publication order, and any submissions in support therefore by Friday, 22 February 2019.

8. The applicant may file one (1) copy in the Tribunal and serve one (1) copy on the respondent of any submissions in response by Wednesday, 27 February 2019.

9. Any further application for any further non-publication order will be determined by the Tribunal on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Shemer [2019] QCAT 53
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
LOGAN SHEMER (respondent)
APPLICATION NO/S:	OCR206-2018
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	18 February 2019 (ex tempore)
HEARING DATE:	18 February 2019
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President Assisted by: Dr J Cavanagh Dr J Osborne Mrs F Petty
ORDERS:	1. Pursuant to s 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal finds that 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(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes conditions on the registration of the respondent in accordance with the attached Schedule of Conditions. 4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, Part 7, Division 11, Subdivision 2 applies to the conditions. 5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is two (2) years. 6. There be no order as to costs. 7. The respondent may file one (1) copy in the Tribunal and serve one (1) copy on the applicant of any application for any further non-publication order, and any submissions in support therefore by Friday, 22 February 2019. 8. The applicant may file one (1) copy in the Tribunal and serve one (1) copy on the respondent of any submissions in response by Wednesday, 27 February 2019. 9. Any further application for any further non-publication order will be determined by the Tribunal on the papers.**
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – SANCTION - where the respondent doctor self-prescribed various controlled and restricted drugs – where the conduct involved dishonesty – where the use of the controlled and restricted drugs adversely affected the respondent’s work performance – where the respondent pleaded guilty to a number of criminal offences in relation to the conduct – where the respondent’s registration was suspended for some 20 months pursuant to immediate action taken by the Medical Board of Australia - where the respondent voluntarily entered into an undertaking with the Medical Board of Australia placing limits on his practise – where the undertaking led to the revocation of the suspension and enabled the respondent to return to practise – where the respondent has complied with the undertaking – where the respondent has engaged in extensive rehabilitative activities – where the respondent has shown insight - where the respondent admits that the conduct amounts to professional misconduct – where the parties provided joint submissions as to sanction – whether the proposed sanction is appropriate PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – SANCTION – where an extended period of suspension of the respondent’s registration was imposed pursuant to immediate action taken by the Medical Board of Australia -…