Health Ombudsman v Shi - [2022] QCAT 98

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Shi [2022] QCAT 98

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

KAI YING SHI

(respondent)

APPLICATION NO/S:

OCR 273/20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 March 2022 (ex tempore)

HEARING DATE:

3 March 2022

HEARD AT:

On the papers

DECISION OF:

Judge Dann, Deputy President
Assisted by:
Ms Laura Dyer
Mr Graeme Kerridge
Ms Barbara Low Soong

ORDERS:

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

2. Pursuant to s 107(3)(a) of the HO Act the respondent is reprimanded.

3. Pursuant to section 107(3)(b)(iii) of the HO Act the respondent must not practice as a registered nurse in an authorised Mental Health Service.

4. Pursuant to section 107(3)(b)(iii) of the HO Act, the respondent may practice only in places of practice approved by the Nursing and Midwifery Board for a period of three years from the date of this order. For the purpose of this order, practice is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a registered nurse in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of the nursing profession in a direct nonclinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe effective delivery of services in the nursing industry.

5. Each party bears its own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was a registered nurse – where the respondent admits engaging in a close but not sexual relationship with Patient A – where Patient A suffered complex and severe mental illness – where the respondent was part of Patient A’s treatment team for 10 months prior to commencing the relationship – where there is medical evidence of a causal link between the respondent’s psychiatric condition he was suffering at the time and the inappropriate relationship – whether the respondents registration should be suspended – whether the respondent should have conditions imposed upon his registration

Health Practitioner Regulation National Law (Queensland) s 5

Health Ombudsman Act 2013 (Qld) s 107

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Ombudsman v Bothwell [2020] QCAT 393

Health Ombudsman v Jolley [2019] QCAT 173

Health Ombudsman v Kimpton [2018] QCAT 405

Health Ombudsman v Wood [2019[ QCAT 35

Legal Services Commissioner v McLeod [2020] QCAT 371

Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

APPEARANCES & REPRESENTATION:

Applicant:

C.J. Lloyd, instructed by the Office of the Health Ombudsman

Respondent:

B.M. Solomon, instructed by Gilchrist Connell

REASONS FOR DECISION

These disciplinary proceedings were referred to the Tribunal by the applicant Director on 31 August 2020. There is…

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 98
Decision Date

CaseChat Overview and Summary

The matter before the Queensland Civil and Administrative Tribunal (QCAT) concerned disciplinary proceedings brought against Kai Ying Shi by the Director of Proceedings on behalf of the Health Ombudsman. The Health Ombudsman had referred disciplinary proceedings to QCAT in respect of the conduct of the respondent, a registered nurse, in relation to a single patient, Patient A. The respondent admitted the allegations in the referral. The Tribunal found the respondent’s conduct constituted professional misconduct as defined by section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). The Tribunal imposed a reprimand on the respondent. It also made orders prohibiting the respondent from working in a mental health service and requiring that he obtain approval of the places where he works for a period of three years from the date of the Tribunal’s order. The Tribunal did not consider it appropriate to suspend the respondent’s registration at this time.

Orders