Health Ombudsman v Sudusinghe - [2022] QCAT 99

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Sudusinghe [2022] QCAT 99

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

SAMITHA VERNON SUDUSINGHE

(respondent)

APPLICATION NO/S:

OCR155-20 and OCR173-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 March 2022 (ex tempore)

HEARING DATE:

17 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President
Assisted by:
Dr Arankanathan Thillainathan
Dr Diana Khursandi
Mr David Lyons

ORDERS:

In OCR 155-20:

1. Pursuant to section 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 section 107(3)(a) of the HO Act, the respondent is reprimanded.

3. Pursuant to section 107(3)(e) of the HO Act, the respondent’s registration is cancelled.

4. Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration for a period of two years from the date of the order.

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

In OCR 173-21:

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

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

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

4. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action made by the Health Ombudsman effective 6 April 2018 be set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was a medical practitioner specialised and working as a general practitioner – where the respondent was convicted after trial for sexual assault of a patient during a consultation and sentenced to 12 months imprisonment wholly suspended for three years – where the respondent also admitted to breaching the conditions imposed upon his registration on six occasions involving five different patients – where at the time of the Tribunal hearing the respondents registration had been suspended by the board – whether the respondents registration should be cancelled for a period of time or further suspended

Health Ombudsman Act 2013 (Qld) s 58, 62

Health Practitioner Regulation National Law (Queensland) s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, 55

Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3

Health Ombudsman v Field [2019] QCAT 243
Health Ombudsman v Barber [2017] QCAT 431
Health Ombudsman v Brown [2019] QCAT 218
Health Ombudsman v Duggiralla [2021] QCAT 326
Health Ombudsman v Gebusion [2021] QCAT 102
Health Ombudsman v Vale [2020] QCAT 363
Health Ombudsman v Vu [2021] QCAT 240
Health Ombudsman v Mutasa [2019] QCAT 315
McBride v Walton [1994] NSWCA 194
Medical Board of Australia v Arulanandorajah(Review and Regulation) [2021] VCAT 85
Medical Board of Australia v Cukler (2017) VCAT 109
Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822
Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026
Medical Board of…

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 99
Decision Date

CaseChat Overview and Summary

This matter involved two referrals by the Director of the Health Ombudsman to the Queensland Civil and Administrative Tribunal (QCAT) in respect of the registration of the respondent, Samith Vernon Sudusinghe, a medical practitioner. The first referral was made on 29 May 2020 and was concerned with the respondent’s conviction for sexual assault of a patient in 2019. The second referral was made on 18 June 2021 and was concerned with the respondent’s breach of conditions imposed upon his registration on six occasions involving five different patients. The parties agreed that the conduct in each referral constituted professional misconduct and that a reprimand was appropriate in each case. The substantial difference between the parties was the sanction the Tribunal should impose. The applicant contended the Tribunal should cancel the respondent’s registration and impose a disqualification period of in the order of three to five years from the date of the order. The respondent contended he should be suspended for a further 18 months to two years. The Tribunal was comfortably satisfied on the facts of this case that the respondent’s conduct constituted professional misconduct within each of sections 5(a) and 5(c) of the National Law. The Tribunal determined that the respondent was not presently a fit and proper person to be registered as a medical practitioner and that an order for cancellation of his registration was appropriate. The Tribunal made orders cancelling the respondent’s registration, disqualified him from applying for reregistration for a period of two years from the date of the order, reprimanded the respondent, and ordered each party to pay their own costs. The Tribunal also set aside the immediate registration action which was taken by the regulator on 7 December 2020.

Orders