Health Ombudsman v YPG - [2022] QCAT 422

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v YPG [2022] QCAT 422

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

YPG

(respondent)

APPLICATION NO/S:

OCR192-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 December 2022

HEARING DATE:

13 December 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D Reid

ORDERS:

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

2. pursuant to section 107(3)(e) of the Health Ombudsman Act the respondent’s registration is cancelled;

3. pursuant to section 107(4) of the Health’s Ombudsman Act, the respondent is disqualified from applying for registration indefinitely;

4. pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act, the immediate registration action is set aside; and

5. there be no orders to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the applicant Ombudsman referred the respondent dentist to the Tribunal seeking disciplinary orders and findings – where the respondent was convicted of gross and serious domestic violence offending and sentenced to seven years imprisonment – where the respondent has since denied committing acts of physical violence and claimed that his guilty pleas were the result of legal advice – where the respondent has not taken any steps towards rehabilitating himself – whether the respondent should be disqualified from applying for registration as a registered health practitioner for a definite or indefinite period of time

Health Ombudsman Act 2013 s 107

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Litchfield [1997] NSWSC 297
Medical Board of Queensland v DAP [2008] QCA 44
Medical Board of Australia v PYP [2021] VCAT 867

Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157

Burgess, L (legal officer) for the applicant Health Ombudsman

Wright, B instructed by Brassington & Partners Solicitors for the respondent dentist

REASONS FOR DECISION

Pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act[1] (HOA), the applicant has referred the respondent, a dental practitioner, to QCAT on the basis that the respondent engaged in professional misconduct. Other alternative orders were sought but it is not necessary to go into them at this stage because it is conceded that the conduct did amount to professional misconduct.
[1]2013 (Qld)
The applicant seeks an order that the respondent’s registration as a dentist be cancelled indefinitely pursuant to the provisions of section 107(3)(e) and 107(4)(a) of the HOA. The respondent accepts the characterisation of the conduct is professional misconduct, as I earlier said, but submits he should be disqualified from applying for registration only until the 21^st of April 2028 or some other definite period thereafter. The significance of the April 2028 date is that is the full-time discharge date of a seven‑year head sentence imposed on the respondent by her Honour Judge Clare SC DCJ for acts of domestic violence against his former partner. That sentence was passed on the 22^nd of April…

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.

Continue reading Health Ombudsman v YPG

Details

AGLC: Health Ombudsman v YPG [2022] QCAT 422
Case: [2022] QCAT 422
Decision Date: 15 December 2022

CaseChat Overview and Summary

The Health Ombudsman brought a disciplinary proceeding against a dentist, YPG, to the Tribunal. YPG had been convicted of serious domestic violence offences and sentenced to seven years in prison. Despite this, YPG denied committing any acts of physical violence and claimed his guilty pleas were the result of legal advice. He had taken no steps towards rehabilitation. The Tribunal had to determine whether YPG should be disqualified from applying for registration as a registered health practitioner for a definite or indefinite period.

The legal issues before the Tribunal were whether YPG’s conviction and subsequent denial of his actions constituted professional misconduct and whether his registration should be cancelled. It also had to decide whether YPG should be disqualified from applying for registration, either indefinitely or for a definite period. The Tribunal needed to assess the seriousness of YPG’s conduct and whether it warranted the severe penalty of indefinite disqualification.

The Tribunal found that YPG’s conviction for serious domestic violence constituted professional misconduct. It considered YPG’s failure to acknowledge his actions and his lack of efforts towards rehabilitation as aggravating factors. The Tribunal concluded that these factors warranted the severe penalty of indefinite disqualification from applying for registration. The Tribunal cancelled YPG’s registration, disqualified him from applying for registration indefinitely, set aside the immediate registration action, and made no orders for costs.

Orders

Orders of the court

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

2. pursuant to section 107(3)(e) of the Health Ombudsman Act the respondent’s registration is cancelled;

3. pursuant to section 107(4) of the Health’s Ombudsman Act, the respondent is disqualified from applying for registration indefinitely;

4. pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act, the immediate registration action is set aside; and

5. there be no orders 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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