Health Ombudsman v Smith

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Smith [2023] QCAT 95

PARTIES:

THE HEALTH OMBUDSMAN

(applicant)

v

ALAN JAMES SMITH

(respondent)

APPLICATIONNO/S:

OCR039-22

MATTERTYPE:

Occupational regulation matters

DELIVEREDON:

1 February 2023

HEARINGDATE:

1 February 2023

HEARDAT:

Brisbane

DECISIONOF:

Judicial Member D Reid

ORDERS

The conduct of the respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).

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

The following condition is imposed on the respondent’s registration as a nurse, pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld):

(a) The respondent is prohibited from providing any health service to females in an unpaid or paid capacity, and in a clinical or non-clinical capacity, until such time as he has completed the agreed upon further education, and in any case for a minimum period of three years.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS    –    NURSES    –    DISCIPLINARY

PROCEEDINGS – where the respondent is a registered nurse – where the respondent seriously violated a boundary with a vulnerable female patient – where the respondent failed to acknowledge and accept his misconduct when challenged by his employer and the Health Ombudsman – whether the respondent should be reprimanded – whether the respondent should be disqualified from registration as a nurse – whether the respondent should be prohibited from

providing health services – whether in the alternative the

respondent   should    have    conditions   imposed    on    his registration as a nurse

Health Ombudsman Act 2013 (Qld) ss 4, 107

Briginshaw v Briginshaw (1938) 60 CLR 336

Health Ombudsman v Bothwell [2020] QCAT 393

APPEARANCES&REPRESENTATION:
Applicant:	JR Jones instructed by the Office of the Health Ombudsman
Respondent:	S Robb instructed by QNMU Law

REASONS FOR DECISION

Background

1. The Health Ombudsman seeks orders against the respondent, who was at all times a Registered Nurse, arising from his engagement in serious and protracted boundary violations with a vulnerable female patient. The proceedings also involve the respondent’s failure to acknowledge and accept his misconduct when challenged by both his employer and the Health Ombudsman.

2. The respondent now accepts his misconduct and also accepts that it is properly characterised as professional misconduct. The issue before me concerns the appropriate order to impose in respect of his misconduct, and in particular, whether to cancel his registration as a Registered Nurse and to prohibit him from applying for registration for a period, and also whether to impose conditions prohibiting him from treating female patients.

3. The facts and circumstances of the matter is set out in an agreed statement of facts.

4. The respondent was born on 15 March 1981 and was 39 at the time of his misconduct. He obtained a Diploma in Higher Education Nursing Studies from Lancaster University in England and was first registered as a nurse in Australia in November 2008.

5. The respondent worked as a Clinical Nurse Consultant with a Youth Outreach Service of the West Morton Hospital (WMH). In that capacity, he was…