Health Ombudsman v XHC - [2021] QCAT 373

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v XHC [2021] QCAT 373

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

XHC

(respondent)

APPLICATION NO/S:

OCR191-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Mr Stephen Lewis
Mr James McNab
Ms Margaret Ridley

ORDERS:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

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

3. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision of the Health Ombudsman to take immediate registration action on 31 January 2019.

4. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency, the publication of any documents or thing filed in or produced to the Tribunal and any order made or reasons given by the Tribunal, to the extent that it could identify or lead to the identification of the respondent, is prohibited.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the respondent pleaded guilty to an offence of making child exploitation material – whether such conduct should be characterised as professional misconduct – what sanction should be imposed

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether a non-publication order should be made anonymising the respondent

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Craig v Medical Board of South Australia (2001) 79 SASR 545

Legal Services Commissioner v McLeod [2020] QCAT 371
Medical Board of Australia v Martin [2013] QCAT 376

Psychology Board of Australia v Cameron [2015] QCAT 227

REPRESENTATION:

Applicant:

Office of the Health Ombudsman

Respondent:

Grant and Simpson Lawyers

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

Introduction

This is a referral of a health service complaint against the respondent, pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
At the time of the conduct the subject of the referral, the respondent had held registration as a registered nurse for more than 20 years. The conduct did not occur in the course of the respondent’s practice as a registered nurse. The conduct involved a rather unusual instance of the criminal offence of making child exploitation material (CEM).
The parties are agreed as…

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: [2021] QCAT 373
Decision Date

CaseChat Overview and Summary

The Health Ombudsman referred a complaint against the respondent, a registered nurse, to the Queensland Civil and Administrative Tribunal. The referral was pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld). The referral related to the respondent's conduct involving the making of child exploitation material in the form of text messages, which occurred outside of her practice as a nurse. The respondent pleaded guilty to the offence and the Health Ombudsman sought to impose a sanction under the Act. The Tribunal heard the matter on the papers and determined that the respondent's conduct should be characterised as professional misconduct and that a reprimand was the appropriate sanction.

The legal issues the Tribunal had to decide included whether the respondent's conduct constituted professional misconduct, what sanction should be imposed and whether a non-publication order should be made. The Tribunal found that the respondent's conduct did constitute professional misconduct and that a reprimand was sufficient to meet considerations of general deterrence and maintenance of professional standards and public confidence in the profession. The Tribunal also found that a non-publication order should be made to protect the identity of a person involved in the conduct.

The Tribunal decided that the respondent had behaved in a way that constituted professional misconduct, reprimanded the respondent and set aside the Health Ombudsman's decision to take immediate registration action. The Tribunal also made an order prohibiting publication of the identity of the respondent. The Health Ombudsman was permitted to provide information about the matter to the Australian Health Practitioner Regulation Agency.

Orders