Health Ombudsman v Stephens - [2020] QCAT 510

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Stephens [2020] QCAT 510

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

NICHOLAS MARTYN STEPHENS

(respondent)

APPLICATION NO/S:

OCR291-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 December 2020 (Ex Tempore)

HEARING DATE:

16 December 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Dr John Quinn
Ms Margaret Ridley

Professor Judy Searle

ORDERS:

1.       The respondent has behaved in a way that constitutes professional misconduct

2.       The respondent is reprimanded.

3.       The respondent’s registration be suspended for a period of one month as and from 1 January 2021.

4. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) publication of the following is prohibited:

(a)    The contents of a document of thing produced to the Tribunal;

(b)   Evidence given before the Tribunal; and

(c)    Any order made or reasons given by the Tribunal, to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of the patient.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – referral by applicant – whether the respondent’s sexual relationship with the applicant amounts to professional misconduct – whether respondent’s conduct is unprofessional conduct or unsatisfactory professional performance – relevance of respondent’s remorse and cooperative approach

Health (Drugs and Poisons) Regulation 1996 (Qld)
Health Ombudsman Act 2013 (Qld) s 8
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 66(1)

Craig v Medical Board of South Australia [2001] 79 SASR 545
Health Ombudsman v Mutasa [2019] QCAT 315
Medical Board of Australia v Davis [2018] QCAT 215
Medical Board of Australia v Fitzgerald [2014] QCAT 425
Medical Board of Australia v Vucak [2015] QCAT 367
Solomon v Australian Health Practitioner Regulatory Agency [2015] WASC 203

APPEARANCES & REPRESENTATION:

Applicant:

C Lloyd, of the Health Ombudsman

Respondent:

G W Diehm QC, instructed by Avant Law

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

By Application filed on 30 August 2019, the Applicant Director referred these disciplinary proceedings to the Tribunal. The referral contains three allegations. Allegation 1 is that the respondent breached professional boundaries by engaging in a sexual relationship with a patient between 30 June 2012 and 7 September 2012. The Director alleges, and the respondent agrees, that as a result, the respondent has engaged in professional misconduct. Allegation 2 relates to the post-dating of prescriptions for the same patient on three occasions in 2014 and early 2015, and Allegation 3 is that the respondent prescribed controlled drugs to the same patient for a period in excess of two months, and failed to provide notice to the chief executive as required by certain provisions of the Health (Drugs and Poisons) Regulation 1996 (Qld) (Regulation). The Director alleges, and the respondent…

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: [2020] QCAT 510
Decision Date

CaseChat Overview and Summary

In this case, the Queensland Civil and Administrative Tribunal (QCAT) determined disciplinary proceedings against Nicholas Martyn Stephens, a registered medical practitioner. The Health Ombudsman, acting on behalf of the public, referred the matter to QCAT, alleging that Dr Stephens had engaged in professional misconduct and unprofessional conduct by breaching professional boundaries with a patient and misusing controlled substances. The Tribunal found that Dr Stephens had engaged in a consensual sexual relationship with a patient, which constituted professional misconduct, and had also engaged in unprofessional conduct by post-dating prescriptions and failing to comply with certain regulatory requirements. Dr Stephens admitted to the allegations and expressed remorse, which the Tribunal accepted as genuine. The Tribunal considered various factors in determining the appropriate sanction, including the delay in the proceedings, the respondent's remorse, and his efforts to address the underlying causes of his misconduct. The Tribunal ultimately ordered a reprimand and a one-month suspension of Dr Stephens' registration, effective from 1 January 2021. The Tribunal also prohibited the publication of certain details to protect the identity of the patient and her family members.

Orders