Health Ombudsman v Smith (No. 2) - [2024] QCAT 376

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Smith (No. 2) [2024] QCAT 376

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

ALAN JAMES SMITH

(respondent)

APPLICATION NO/S:

OCR 39 of 2022

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 September 2024

HEARING DATE:

1 February 2023

FURTHER SUBMISSIONS:

1 August 2023 and 14 August 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Reid
Assisted by:
Dr K Forrester, Nursing Panel Member
Ms M Barnett, Nursing Panel Member
Mr M Halliday, Public Panel Member

ORDERS:

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(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’.

4. The parties have leave to request the matter be listed for an oral hearing in the event the parties discover any difficulty with these orders.

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 —where the Tribunal made findings as to facts and characterisation and sought submissions from the parties as to conditions to be imposed —conditions now imposed on the respondent’s registration

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Smith [2023] QCAT 95

APPEARANCES & REPRESENTATION:

Applicant:

J R Jones instructed by the Office of the Health Ombudsman

Respondent:

S Robb instructed by QNMU Law

REASONS FOR DECISION

I delivered judgement in this matter on 1 February 2023,[1] indicating I proposed to make orders that the respondent’s conduct the subject of the proceedings amounted to professional misconduct, reprimanding him and imposing conditions on his registration as a nurse.
[1]Health Ombudsman v Smith [2023] QCAT 95.
Those conditions that I foreshadowed were that he be prohibited from providing any health service to females for a minimum period of three years and in any case until he had completed further education and training with Dr Wendy McIntosh (who had provided a report used in the Tribunal Hearing relating to education and training she had already provided) or some other appropriate professional. The purpose of the education was, of course, so as to reduce the risk of future misconduct by educating the respondent about issues concerning boundary violations. In administering the Health Ombudsman Act (the Act), health and safety of the public is paramount.
Both parties filed submissions regarding the terms of such conditions. The Health Ombudsman (applicant) submits that in addition to an order pursuant to s 107(3)(b) of the Act prohibiting the respondent from providing health…

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 376
Decision Date: 18 September 2024

CaseChat Overview and Summary

The case of Health Ombudsman v Smith (No. 2) involved a registered nurse who had been found to have seriously violated professional boundaries with a vulnerable female patient. The respondent failed to acknowledge or accept his misconduct when challenged by his employer and the Health Ombudsman. The Tribunal made findings as to facts and characterisation, and sought submissions from the parties regarding the conditions to be imposed on the respondent’s registration. The primary legal issue was whether conditions should be imposed on the respondent's registration and, if so, what those conditions should be.

The Tribunal considered the severity of the respondent’s misconduct, which involved a serious breach of professional boundaries with a vulnerable patient. The Tribunal also took into account the respondent's lack of acceptance of responsibility for his actions. The Tribunal decided that conditions were necessary to protect the public and maintain the integrity of the nursing profession. The Tribunal imposed conditions on the respondent's registration, which included restrictions on where and with whom the respondent could practise, and requirements for further education. These conditions were intended to ensure the respondent would not engage in similar misconduct in the future.

The court found that the respondent had behaved in a way that constituted professional misconduct and was properly reprimanded. The court imposed conditions on the respondent's registration in the form of ‘Annexure A’, which included restrictions on practice locations and contact with female patients, as well as requirements for further education. The court granted the parties leave to request the matter be listed for an oral hearing if any difficulties with these orders were discovered.

Orders

Orders of the court

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(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’.

4. The parties have leave to request the matter be listed for an oral hearing in the event the parties discover any difficulty with these orders.

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

Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’. The parties have leave to request the matter be listed for an oral hearing in the event the parties discover any difficulty with these orders. The practitioner must not practise as a registered nurse until approved practice locations are published below:The following are approved practice locations: No practice locations approved to date. After publication of approved practice locations the practitioner must not have any contact with female patients until such time as the practitioner has successfully completed the requirements of the agreed further education detailed in conditions 5 - 8, and must only practise at approved practice locations.For the purposes of this condition, the following definitions apply:‘Practise’ 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 a registered nurse in a direct non-clinical 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 profession.‘Practice location’ means any location where the practitioner practises the profession including any place where the practitioner:(a) is self-employed(b) shares premises with other registered health practitioners(c)is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement(d)provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or(e)provides professional services at the residential premises of a patient.‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner and any spouse, partner, parent, family member or guardian/carer of this individual.‘Contact with a patient’ includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.‘Female’ is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female. The practitioner must comply with the Gender-based restriction protocol in force at the date these conditions are imposed and then as amended from time to time. Within three (3) business days of notice of these conditions being imposed the practitioner is to provide acknowledgement, on the approved form (GBR-1) that:(a)they have read and understood the Gender-based restriction protocol(b)they are aware that they are not permitted to practise until such time as approved practice locations are published(c)they understand the definition of ‘patient’, ‘practise’, ‘practice location’, ‘male’, ‘female’, and ‘contact’ as detailed in this condition; and(d)they are aware of the actions Ahpra may take for the purposes of monitoring compliance with the gender-based restriction.