Health Ombudsman v Warren - [2022] QCAT 124

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Warren [2022] QCAT 124

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

KAJA FRANCESCA WARREN

(respondent)

APPLICATION NO/S:

OCR162-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 April 2022

HEARING DATE:

6 April 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Mr Andrew Cameron
Ms Laura Dyer

Ms Margaret Ridley

ORDERS:

1.     That in respect of ground 1 of the referral, the respondent behaved in a way that constituted professional misconduct.

2.     That in respect of grounds 2 and 3 of the referral, the respondent behaved in a way that constituted unprofessional conduct but limited only to the breach of bail involving the assault.

3.     That in respect of grounds 4, 5 and 6 of the referral, the respondent behaved in a way that constituted unprofessional conduct.

4.     The respondent is reprimanded.

5.     The respondent is disqualified from applying for registration as a health practitioner for a period of three years.

6.     The respondent is prohibited from providing a health service in a clinical or non- clinical capacity to patients under the age of 18 years until such a time as she obtains registration as a health practitioner.

7.     The interim prohibition order of the Health Ombudsman dated 23 May 2016 is set aside.

8.     Each party is to bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent registered nurse was convicted of indecent treatment of a child under 16, sentenced to 12 months imprisonment, wholly suspended for an operational period of 2 years – where further allegations of breach of bail, false statements on registration renewal and failure to notify – where the respondent is no longer registered – whether a period of disqualification should be imposed – whether the respondent should be disqualified from providing health services

Health Ombudsman Act 2013 (Qld) s 3, 4, 107

Health Practitioner Regulation National Law (Qld) s 130

Craig v Medical Board of South Australia [2001] SASC 169

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v GCV [2020] QCAT 30

Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97

Nursing and Midwifery Board v Burrows [2020] QCAT 164

APPEARANCES & REPRESENTATION:

Applicant:

Townsend, N (Senior Legal Officer at the Office of the Health Ombudsman)

Respondent:

No Appearance

REASONS FOR DECISION

Introduction

This proceeding is concerned with an application brought by the Health Ombudsman (applicant) concerning a previously registered nurse, Kaja Francesca Warren (respondent).
At the hearing of this application (6 April 2022), the applicant was represented by Ms N Townsend. There was no appearance by the respondent despite her being aware of the allegations made by, and the relief sought by the applicant. That is not all that surprising in that the respondent has not practiced as a registered nurse since April 2016 and has told the applicant that she has no intention of returning to the profession. 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: [2022] QCAT 124
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the outcome of a disciplinary proceeding brought by the Health Ombudsman (applicant) against Kaja Francesca Warren (respondent), a previously registered nurse. The applicant sought various sanctions against the respondent for professional misconduct and unprofessional conduct arising from her criminal offending, breaches of bail, failure to report changes in criminal history, and failure to notify relevant authorities of certain charges. The respondent did not appear or present any defense, and the matter proceeded in her absence. The legal issues before the Tribunal were whether the respondent's conduct amounted to professional misconduct or unprofessional conduct, and if so, what sanctions should be imposed to protect the public.

The Tribunal found that the respondent's criminal offence of indecent treatment of a child under 16 constituted professional misconduct, warranting a finding of professional misconduct, a reprimand, and a period of disqualification from applying for registration as a health practitioner. The Tribunal found the breaches of bail, involving a common assault, to constitute unprofessional conduct. However, the Tribunal rejected the notion that the failures to report as required constituted unprofessional conduct. Additionally, the Tribunal found the false statement on the renewal of registration and the failure to notify relevant authorities of charges to be examples of unprofessional conduct. The Tribunal also considered the respondent's mental health issues, which were relevant to her lack of remorse and insight into the seriousness of her actions. Ultimately, the Tribunal determined that the appropriate sanction in this case was a three-year disqualification from applying for registration as a health practitioner, a prohibition on providing health services to patients under 18 years of age until registration is obtained, and the setting aside of an interim prohibition order.

In summary, the QCAT found that Kaja Francesca Warren's conduct constituted professional misconduct and unprofessional conduct in various respects. The Tribunal imposed sanctions to protect the public, including a three-year disqualification from applying for registration as a health practitioner, a prohibition on providing health services to patients under 18 years of age until registration is obtained, and the setting aside of an interim prohibition order. The Tribunal also reprimanded the respondent and ordered that each party bear their own costs of the proceeding.

Orders