Ting v Health Ombudsman - [2023] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

Ting v Health Ombudsman [2023] QCA 180

PARTIES:

JOHN YUK CHING TING
(applicant)
v
HEALTH OMBUDSMAN
(respondent)

FILE NO/S:

Appeal No 1609 of 2023
QCAT No 174 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2022] QCAT 349 (Judicial Member Robertson)

DELIVERED ON:

5 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2023

JUDGES:

Flanagan and Boddice JJA and Bradley J

ORDER:

The application for leave to appeal is dismissed with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – APPEALS – where the applicant was found to have engaged in professional misconduct by the Queensland Civil and Administrative Tribunal – where the applicant’s registration as a medical practitioner was cancelled – where the applicant was disqualified from applying for registration indefinitely – where the applicant alleged bias on the part of the judicial member – where the applicant accepted that his conduct was sub-standard but offered various explanations for that conduct – where the applicant had previously been de-registered – where there was expert evidence that the applicant showed little insight into his conduct – whether the Tribunal’s decision should be set aside and substituted with one subjecting the applicant’s registration to various restrictions

Health (Drugs and Poisons) Regulation 1996 (Qld), sch 4, sch 8
Health Ombudsman Act 2013 (Qld), s 4, s 107
Health Practitioner Regulation National Law (Qld), s 5, s 41

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, applied

COUNSEL:

The applicant appeared on his own behalf
C Wilson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Office of the Health Ombudsman for the respondent

FLANAGAN JA: I agree with Bradley J.
BODDICE JA: I agree with Bradley J.
BRADLEY J: The applicant, Dr Ting, was first registered as a medical practitioner in December 1990. He holds a Bachelor of Medicine and Bachelor of Surgery degree awarded by the University of Queensland in 1989. He has been a Fellow of the Royal Australian College of General Practitioners since 1994, and a fellow in advanced rural general practice since 2015.
On 9 December 2022, the Queensland Civil and Administrative Tribunal decided that Dr Ting had behaved in a way that constituted professional misconduct.[1] The Tribunal cancelled his registration as a medical practitioner and disqualified him from applying for registration indefinitely.[2]
[1]Within the definition of professional misconduct in s 5 of the Health Practitioner Regulation National Law (Qld) (National Law).
[2]The Tribunal also set aside an immediate registration action the Medical Board of Australia (the Board) had taken on 7 March 2019 and made directions about the parties seeking an order for costs…

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: [2023] QCA 180
Decision Date: 5 September 2023

CaseChat Overview and Summary

In the case of Ting v Health Ombudsman, Dr Ting appealed against a decision by the Queensland Civil and Administrative Tribunal (QCAT) which found him to have engaged in professional misconduct, resulting in the cancellation of his registration as a medical practitioner and a disqualification from applying for registration indefinitely. The primary legal issues before the court were whether there was any legal or factual error by the judicial member in the Tribunal’s decision, and whether the Tribunal had the jurisdiction to make the decisions it did.

The court examined the submissions made by Dr Ting, who claimed that his registration should not have been cancelled but rather subjected to various restrictions. The court noted that Dr Ting accepted that his conduct was sub-standard but offered various explanations for that conduct. However, the court found that Dr Ting had not identified any error of law by the judicial member or any mistake in the relevant findings of fact made by the judicial member. The court also considered expert evidence that Dr Ting showed little insight into his conduct.

After reviewing the evidence and submissions, the court concluded that the Tribunal had jurisdiction to decide whether Dr Ting had behaved in a way that constituted professional misconduct, and having so decided, to cancel Dr Ting’s registration and disqualify him from applying for registration indefinitely. The court dismissed the application for leave to appeal with costs.

The ratio of the case is that Dr Ting identified no legal or factual error by the judicial member, and there is no basis for the Court to set aside the Tribunal’s findings on allegation 2. The court found that the Tribunal's decision was based on evidence and admissions by Dr Ting, and there was no utility in granting leave to advance any other arguments.

Orders

Orders of the court

The application for leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Dr Ting submitted that Dr Prior’s opinion meant that “in principle” he does not require supervision by a general practitioner. Dr Prior’s written opinion does not support this submission. I am unable to accept Dr Ting’s submission.Lack of evidence and reasoning Dr Ting submitted that the judicial member’s published reasons lack written objective evidence and reasons to justify the decision. I am unable to accept this submission. The judicial member’s reasons are replete with references to the evidence on each allegation. The judicial member made factual findings based on that evidence and Dr Ting’s relevant admissions. The judicial member set out the analysis of the facts that led to the conclusions drawn on each of the allegations. Finally, the judicial member considered Dr Ting’s conduct, as established by the evidence, admissions, and factual findings, and reasoned to the ultimate finding that Dr Ting had engaged in professional misconduct.Minor, peripheral, and irrelevant matters Dr Ting canvasses several other matters in his outline and reply that were not the subject of any finding the judicial member relied upon to reach the decisions of 9 December 2022. Dr Ting’s contentions on these other matters do not upset any relevant findings of the judicial member. It is not necessary to deal with any of these for the purposes of his application to this Court. There would be no utility in granting leave to advance any of these arguments.Final disposition The Tribunal had jurisdiction to decide whether Dr Ting had behaved in a way that constitutes professional misconduct and, having so decided, to cancel Dr Ting’s registration and disqualify him from applying for registration indefinitely.[39] Dr Ting has not identified any error of law by the judicial member or any mistake in the relevant findings of fact made by the judicial member.[39]HOA, s 107(2)(b)(i), (3)(e), and (4)(a). I would dismiss the application for leave to appeal with costs.

Decision

Reasons for decision

DR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DR J

Dr Ting identified no legal or factual error by the judicial member. There is no basis for this Court to set aside the Tribunal’s findings on allegation 2.Allegation 3: Breach of registration conditions on patient appointments and logbook On 28 December 2018, the Board imposed conditions on Dr Ting’s registration as a medical practitioner. Relevantly, the conditions required Dr Ting to limit the number of patients with whom he consulted to four per hour and to keep a log of details of his contact with each patient. The Board had imposed the conditions after receiving the report of Dr Jacobs and Dr King.[10][10]Dr Ting described the registration condition requiring him to keep a log of patient consultations was “unreasonable” and “tedious and time-consuming”. The lawfulness of the condition was not challenged in the Tribunal or in this Court. Dr Ting did not address the Court on this allegation. It may be briefly considered by reference to his written outline and reply. In his outline, Dr Ting contended that the “excessive booked patients” – more than four per hour – did not “translate to excessive consultations”. His explanation was that this “clearly indicates common-sense explanations such as patients cancelling their appointments or patients [who] did not turn up for their appointments”. The Board’s allegation was established by Dr Ting’s clinical notes of his consultations on 14, 15, 19, and 21 February 2019. Dr Ting accepted these as correct in cross-examination. In the face of the evidence and admission, I reject Dr Ting’s suggested explanation. Dr Ting also contended there were “extenuating circumstances or reasons” for consulting with more than four patients per hour. He wrote that, for each patient with whom he consulted, he spent five minutes keeping the log required by another of the registration conditions. This submission neither justifies nor explains Dr Ting’s failure to comply with the condition. Dr Ting appears to have accepted that he failed to record in his logbook three consultations with patients on 12 February 2019, at which he prescribed oxycodone, temazepam, and paracetamol and codeine, respectively. In his written response, Dr Ting stated that any breaches were “unintentional”. He told the Tribunal “these oversights were not intentional”. The judicial member rejected Dr Ting’s characterisation of the breaches as unintentional, finding:“His attitude to the logbook condition is absolutely consistent with his past conduct. He has difficulty in accepting fault. He blames others. In my opinion, his overall attitude is consistent with someone who does not understand or accept the significance of such conditions.” Nothing identified by Dr Ting shows the judicial member’s conclusion to be affected by error.Allegation 4: Prescribing S4 and S8 drugs after authority cancelled Dr Ting did not challenge the evidence that the chief executive cancelled his endorsement to prescribe S4 drugs and S8 drugs pursuant to the Health (Drugs and Poisons) Regulation 1996 (Qld) (HDPR) and that he received the cancelation notice on 12 February 2019, at about 3.00 pm.[11][11]The applicant’s earlier challenge to the cancelation notice was heard and dismissed by the Tribunal differently constituted: Ting v Chief Executive, Queensland Health [2020] QCAT 265.

CITATION:	Ting v Health Ombudsman [2023] QCA 180
PARTIES:	JOHN YUK CHING TING (applicant) v HEALTH OMBUDSMAN (respondent)
FILE NO/S:	Appeal No 1609 of 2023 QCAT No 174 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal – [2022] QCAT 349 (Judicial Member Robertson)
DELIVERED ON:	5 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2023
JUDGES:	Flanagan and Boddice JJA and Bradley J
ORDER:	The application for leave to appeal is dismissed with costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – APPEALS – where the applicant was found to have engaged in professional misconduct by the Queensland Civil and Administrative Tribunal – where the applicant’s registration as a medical practitioner was cancelled – where the applicant was disqualified from applying for registration indefinitely – where the applicant alleged bias on the part of the judicial member – where the applicant accepted that his conduct was sub-standard but offered various explanations for that conduct – where the applicant had previously been de-registered – where there was expert evidence that the applicant showed little insight into his conduct – whether the Tribunal’s decision should be set aside and substituted with one subjecting the applicant’s registration to various restrictions Health (Drugs and Poisons) Regulation 1996 (Qld), sch 4, sch 8 Health Ombudsman Act 2013 (Qld), s 4, s 107 Health Practitioner Regulation National Law (Qld), s 5, s 41 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, applied
COUNSEL:	The applicant appeared on his own behalf C Wilson for the respondent
SOLICITORS:	The applicant appeared on his own behalf Office of the Health Ombudsman for the respondent