Health Ombudsman v Sudusinghe - [2023] QCAT 542

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Sudusinghe [2023] QCAT 542

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

RASIKA SUDUSINGHE

(respondent)

APPLICATION NO/S:

OCR088-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 November 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson
Assisted by:
Dr R Pittelli, Medical Practitioner Panel Member
Dr J Quinn, Medical Practitioner Panel Member
Ms K Thomson, Public Panel Member

ORDERS:

1. The conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013(Qld).

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

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013(Qld), the respondent pay a fine of $10,000 to the Health Ombudsman.

4. Pursuant to section 107(b)(i) of the Health Ombudsman Act 2013 (Qld), conditions be imposed on the practitioner’s registration that the respondent complete education in the terms of the attached schedule.

5. Each party bears their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — where the respondent is a general practitioner — where the respondent has aided another health practitioner to breach conditions — where the parties agree that the conduct constitutes professional misconduct — whether conditions are to be imposed — practitioner reprimanded and fined

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Sudusinghe [2022] QCAT 99

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

The respondent is a registered medical practitioner and holds specialist qualifications as a general practitioner (‘GP’). The referral filed by the applicant on 29 April 2022 contains one allegation, namely that between 1 April 2020 and 28 September 2020, the respondent aided and/or enabled Dr Samitha Sudusinghe to breach conditions imposed on his registration by the Health Ombudsman on 6 June 2019.
The parties have filed an agreed statement of facts. The parties are agreed as to the proper characterisation of the alleged conduct. The conduct is admitted, and the parties have reached agreement as to the appropriate sanction. As a result, the matter proceeds on the papers.

The conduct the subject of the referral

The conduct subject of the referral involves Dr Samitha Sudusinghe, who is the husband of the respondent. On 1 February 2019, he was convicted in the District Court of Queensland of one count of sexual assault. On 6 June 2019, the Health Ombudsman took immediate registration action in respect of Dr Samitha Sudusinghe by imposing conditions on his registration which, in effect, banned him from having contact with female patients.
The respondent was obviously aware of her husband’s conviction, and she was aware of the imposition of the condition. She knew that he was prohibited…

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: [2023] QCAT 542
Decision Date: 14 November 2023

CaseChat Overview and Summary

The Health Ombudsman initiated disciplinary proceedings against Dr Sudusinghe, a general practitioner, in the Queensland Civil and Administrative Tribunal. The Ombudsman alleged that Dr Sudusinghe had engaged in professional misconduct by aiding another health practitioner in breaching certain conditions set by the tribunal. Both parties agreed that Dr Sudusinghe's actions constituted professional misconduct under section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld). The central issue for the tribunal was whether conditions should be imposed on Dr Sudusinghe's registration and what those conditions should be, as well as determining an appropriate sanction.

The tribunal considered the severity and nature of the professional misconduct, the respondent's history of compliance with tribunal conditions, and the need to uphold the integrity of the medical profession. It was noted that Dr Sudusinghe had not previously been subject to disciplinary action, and his cooperation with the proceedings was taken into account. Given these factors, the tribunal decided to impose a reprimand and a fine of $10,000, in addition to mandating that Dr Sudusinghe complete specific educational programs. The tribunal concluded that these measures would adequately address the misconduct while also serving a deterrent function.

In summary, the tribunal found Dr Sudusinghe's conduct to be professional misconduct and imposed a reprimand, a monetary fine, and educational conditions on his registration. Both parties were ordered to bear their own costs of the proceeding.

Orders

Orders of the court

1. The conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).

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

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent pay a fine of $10,000 to the Health Ombudsman.

4. Pursuant to section 107(b)(i) of the Health Ombudsman Act 2013 (Qld), conditions be imposed on the practitioner’s registration that the respondent complete education in the terms of the attached schedule.

5. Each party bears their own costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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