Health Ombudsman v Wallace

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Wallace [2020] QCAT 286

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

FARREN JOHN WALLACE

(respondent)

APPLICATION NO/S:

OCR171-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.   Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons who are through illness or disability not of sound mind.

2.   Pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order dated 16 June 2017.

3.   Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service to persons who are through illness or disability not of sound mind.

4.   Both parties must bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS –unregistered health care professional – respondent an assistant in nursing - respondent had been convicted of offences against two residents of an aged care home where he worked – respondent administered unauthorised sedative to residents - respondent did not take part in the proceeding – whether Tribunal should make an order permanently prohibiting the respondent from providing any health service

Health Ombudsman Act 2013 (Qld) s 8, s 103, s 113

Colagrande v Health Ombudsman [2017] QCAT 107
Health Ombudsman v Costello [2016] QCAT 117
Health Ombudsman v MacBean [2019] QCAT 300
Kaye v Health Care Complaints Commission [2017] NSWCATOD 157

REPRESENTATION:
Applicant:	Office of the Health Ombudsman
Respondent:	Not participating
APPEARANCES:	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

1. This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104. At the time relevant to this proceeding, February 2015, the respondent was working as an assistant in nursing at an aged care home. He was therefore providing a health service, that is, a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing: s 7(1). So he was a health service provider, and a health practitioner: s 8. There was however no requirement in the Health Practitioner Regulation National Law (Qld) for him to register under that Law, since assistant in nursing is not a health profession for the purposes of that Law: s 5.[1]

   [1]The practical effect of that is that I can deal with this matter without the assistance of assessors: s 126. 

2. This matter was referred to the Tribunal on 30 May 2019. The Tribunal therefore still has jurisdiction to decide it, despite the fact that, earlier this year, the Tribunal lost…