RMQ v Health Ombudsman - [2024] QCAT 302

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

RMQ v Health Ombudsman [2024] QCAT 302

PARTIES:

RMQ

(applicant)

v

OFFICE OF THE HEALTH OMBUDSMAN

(respondent)

APPLICATION NO:

OCR 190 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 August 2024

HEARING DATE:

30 May 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member the Hon P J Murphy SC

ORDERS:

1.    The prohibition order issued by the Health Ombudsman on 23 June 2023 be set aside.

2.    Each of the two applications filed by the applicant on 22 May 2024 be dismissed.

3.    The name of the applicant and any other person referred to in the Tribunal’s reasons be anonymised.

4.    Any publication of the Tribunal’s reasons shall refer to the applicant and any other person referred to in the Tribunal’s reasons only as anonymised.

5.    Save as might otherwise be ordered by the Tribunal; for the purposes of any appeal; or any proper function of the Health Ombudsman or the Tribunal, it is prohibited to publish, copy or inspect:

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

(b)     evidence given before the Tribunal; and

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

to the extent that it could identify or lead to the identification of the applicant or any other person referred to therein.

6.     There be no order as to costs of either the applications or the review.

CATCHWORDS:

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the Tribunal exercises its review jurisdiction — whether the applicant has standing to institute proceedings for review of decision — whether the correct and preferable decision was made

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — OTHER HEALTH CARE PROFESSIONALS — where the applicant was a massage therapist — where massage therapy is not considered a ‘health profession’ under the Health Practitioner Regulation National Law (Queensland) — whether the applicant is a ‘health practitioner’ by reason of providing a ‘health service’ under the Health Ombudsman Act 2013 (Qld)

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — OTHER HEALTH CARE PROFESSIONALS — where the Health Ombudsman imposed a permanent prohibition order restraining the applicant from providing any health services — whether the correct and preferable decision was made — meaning of ‘serious risk’ — decision set aside

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Donaghey v Donaghey (2011) 45 Fam LR 183

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Health Ombudsman v Abdelkadiri [2020] QCAT 199
Health Ombudsman v McBean [2019] QCAT 300
Health Ombudsman v Raynor [2021] QCAT 25
Health Ombudsman v Wallace [2020] QCAT 286
Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented, assisted by an interpreter

Respondent:

C Templeton instructed by the Office of the Health Ombudsman

REASONS…

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: [2024] QCAT 302
Decision Date: 5 August 2024

CaseChat Overview and Summary

The case of RMQ v Health Ombudsman involves a massage therapist, RMQ, challenging a permanent prohibition order imposed by the Health Ombudsman. This order restricts RMQ from providing any health services. The matter was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT) which exercises its review jurisdiction over decisions made by the Health Ombudsman. The primary issue before the Tribunal was whether RMQ had standing to institute proceedings for review of the decision, considering that massage therapy is not classified as a 'health profession' under the Health Practitioner Regulation National Law (Queensland). Additionally, the Tribunal had to determine whether the Health Ombudsman's decision to impose the prohibition order was the correct and preferable one, particularly in the context of what constitutes a 'serious risk' under the Health Ombudsman Act 2013 (Qld).

The Tribunal found that RMQ did have standing to challenge the decision as a 'health practitioner' by virtue of providing a 'health service'. The key legal issue was whether the Health Ombudsman's decision to impose the prohibition order was justified. The Tribunal examined the meaning of 'serious risk' and whether the evidence supported such a conclusion. After considering the evidence and arguments presented, the Tribunal concluded that the Health Ombudsman's decision was not the correct and preferable one. The Tribunal determined that the prohibition order was not warranted based on the evidence available, and therefore set it aside.

The final orders of the Tribunal included setting aside the prohibition order imposed on RMQ, dismissing the two applications filed by RMQ, and imposing anonymity on RMQ and any other referenced individuals to prevent identification. Additionally, the Tribunal prohibited the publication, copying, or inspection of documents, evidence, or orders that could identify RMQ or other individuals involved in the case, except as permitted by law, for appeal purposes, or for the proper functions of the Health Ombudsman or the Tribunal. The Tribunal made no order as to the costs of the applications or the review.

Orders

Orders of the court

1. The prohibition order issued by the Health Ombudsman on 23 June 2023 be set aside.

2. Each of the two applications filed by the applicant on 22 May 2024 be dismissed.

3. The name of the applicant and any other person referred to in the Tribunal’s reasons be anonymised.

4. Any publication of the Tribunal’s reasons shall refer to the applicant and any other person referred to in the Tribunal’s reasons only as anonymised.

5. Save as might otherwise be ordered by the Tribunal; for the purposes of any appeal; or any proper function of the Health Ombudsman or the Tribunal, it is prohibited to publish, copy or inspect:

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

(b) evidence given before the Tribunal; and

to the extent that it could identify or lead to the identification of the applicant or any other person referred to therein.

6. There be no order as to costs of either the applications or the review.

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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