Health Ombudsman v XYA - [2025] QCAT 246

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v XYA [2025] QCAT 246

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

XYA

(respondent)

APPLICATION NO/S:

OCR303-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 January 2025 (decision)

28 February 2025 (reasons)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Ms J Felton
Ms E McKibbin
Mr J McNab

ORDERS:

THE TRIBUNAL ORDERS THAT:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a)     the contents of a document or other thing filed in or produced to the Tribunal;

(b)     evidence given before the Tribunal;

(c)     any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the respondent’s child, directly or indirectly, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2.     Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a)     a judicial member;

(b)     a tribunal member;

(c)     an associate to a judicial officer or tribunal member appointed under relevant legislation;

(d)     any assessor appointed to assist the Tribunal;

(e)     the staff of the Tribunal registry;

(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g)     the parties to these proceedings or any appeal or review arising from these proceedings.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The conduct of the respondent that is the subject of allegation 1 constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

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

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

4. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a health practitioner such that she is precluded from practise for a total period of ten years from the date of suspension, that is 27 August 2021.

5. Pursuant to s 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service such that she is precluded from doing so for the same period as that which she is disqualified from applying for registration as a health practitioner.

6. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on the respondent on 27 August 2021 is set aside.

7.          No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – where 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: [2025] QCAT 246
Decision Date: 24 January 2025 (decision) 28 February 2025 (reasons)

CaseChat Overview and Summary

The respondent, a registered nurse, was subject to disciplinary proceedings brought by the Health Ombudsman following their conviction on seven offences relating to indecent treatment of their child and possession of child exploitation material. The parties agreed on the facts, and the respondent admitted to the conduct. The tribunal had to determine whether the respondent's actions constituted professional misconduct under the Health Ombudsman Act 2013 (Qld) and, if so, the appropriate sanction to be imposed.

The tribunal found that the respondent's conduct did indeed constitute professional misconduct. The tribunal concluded that the respondent's actions were so serious that they warranted a severe penalty, including a reprimand, cancellation of the respondent's registration, and a ten-year ban on both applying for registration and providing any health services. The tribunal also set aside the immediate registration action imposed by the Health Ombudsman on 27 August 2021.

The tribunal's reasoning was grounded in the seriousness of the respondent's conduct and the need to protect the public and maintain the integrity of the health profession. The tribunal determined that the respondent's actions were not only criminal but also reflected a severe breach of professional standards and ethics. Consequently, the tribunal imposed the harshest penalty available under the Act to ensure the respondent could not re-enter the health profession for a significant period.

The tribunal's final orders include a prohibition on the publication of any material that could identify the respondent's child, a reprimand, the cancellation of the respondent's registration, a ten-year ban on applying for registration and providing health services, and the setting aside of the immediate registration action imposed by the Health Ombudsman. No order as to costs was made.

Orders

Orders of the court

THE TRIBUNAL ORDERS THAT:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a) the contents of a document or other thing filed in or produced to the Tribunal;

(b) evidence given before the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the respondent’s child, directly or indirectly, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a) a judicial member;

(b) a tribunal member;

(d) any assessor appointed to assist the Tribunal;

(e) the staff of the Tribunal registry;

(f) any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g) the parties to these proceedings or any appeal or review arising from these proceedings.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The conduct of the respondent that is the subject of allegation 1 constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

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

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

4. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a health practitioner such that she is precluded from practise for a total period of ten years from the date of suspension, that is 27 August 2021.

5. Pursuant to s 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service such that she is precluded from doing so for the same period as that which she is disqualified from applying for registration as a health practitioner.

6. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on the respondent on 27 August 2021 is set aside.

7. No order as to costs.

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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