YBCG v Health Ombudsman - [2024] QCAT 516

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

YBCG v Health Ombudsman [2024] QCAT 516

PARTIES:

YBCG

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO:

OCR 144 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 December 2024

HEARING DATE:

3 April 2024

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:
Dr T Lowry, Psychologist Panel Assessor
Mr S Brimstone, Psychologist Panel Assessor
Ms J A Felton, Public Panel Assessor

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:

(d)     the applicant; or

(e)     the patients the subject of the review or any family member of those patients;

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 respondent to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s 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 review is upheld.

2.     The decision under review made by the Health Ombudsman on 27 March 2023 to take immediate registration action against the applicant is set aside.

3.     Any application for costs and written submissions limited to two pages by a party seeking costs must be filed in the Tribunal and served on the other party by no later than 4:00pm on 13 December 2024.

4.     Any submissions in response, also limited to two pages, must be filed in the Tribunal and served on the other party by no later than 4:00pm on 13 January 2025.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — PSYCHOLOGISTS — licences and registration — immediate action — review of immediate action — where the applicant psychologist applies to review a decision of the Health Ombudsman to impose conditions on his registration — where the conditions were imposed in response to notifications by two female patients raising concerns about the applicant’s conduct in consultations — where the conditions, inter alia, prohibited 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: [2024] QCAT 516
Decision Date: 3 December 2024

CaseChat Overview and Summary

In the case of YBCG v Health Ombudsman, the applicant, a psychologist, sought a review of a decision made by the Health Ombudsman (HO) to impose conditions on his registration. The HO's decision was based on concerns raised by two female patients regarding the applicant's conduct during consultations. The HO believed that the applicant posed a serious risk to persons and took immediate registration action, including prohibiting the applicant from seeing female patients and imposing specific requirements on his booking, employment, and practice locations. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the HO's decision to determine whether it was correct and preferable.

The primary legal issues before the Tribunal were whether the evidence supported a reasonable belief that the applicant posed a serious risk to persons and, if so, what the appropriate response to that risk was. The Tribunal had to consider the credibility of the evidence provided by the two patients and the applicant, especially given the HO's refusal to make Patient A available for cross-examination. The Tribunal was required to exercise its review jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and determine whether the HO's decision was the correct and preferable one. The Tribunal had the authority to hear and decide the review on the merits, considering all material filed and any new circumstances that had developed since the HO's decision.

The Tribunal found that the HO's decision should be set aside. It concluded that the evidence did not support a reasonable belief that the applicant posed a serious risk to persons. The Tribunal was not inclined to the belief that the applicant behaved as alleged by Patient A in the last two consultations at the end of the treating relationship. As a result, the Tribunal upheld the review, set aside the HO's decision, and prohibited the publication of any material that could identify the applicant or the patients involved. The Tribunal also ordered that any application for costs must be limited to two pages and submitted by a specific deadline, with any response also limited to two pages and submitted by another deadline.

The Tribunal's final orders included prohibiting the publication of any material that could identify the applicant or the patients, restricting access to such material, and setting aside the HO's decision to take immediate registration action. The Tribunal also outlined the process for any application for costs, stipulating specific deadlines for filing and serving written submissions.

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:

(d) the applicant; or

(e) the patients the subject of the review or any family member of those patients;

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 respondent to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s 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 review is upheld.

2. The decision under review made by the Health Ombudsman on 27 March 2023 to take immediate registration action against the applicant is set aside.

3. Any application for costs and written submissions limited to two pages by a party seeking costs must be filed in the Tribunal and served on the other party by no later than 4:00pm on 13 December 2024.

4. Any submissions in response, also limited to two pages, must be filed in the Tribunal and served on the other party by no later than 4:00pm on 13 January 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The practitioner seeks to review the Health Ombudsman’s (HO) decision dated 27 April 2023 to take immediate registration action (IA Decision). The HO took immediate registration action pursuant to s 58(1)(a) of the Health Ombudsman Act 2013 (Qld) (HO Act). In summary, after receiving notifications involving two separate female patients several months apart raising concerns about the practitioner’s conduct in consultations, the HO decided she formed a reasonable belief that because of the practitioner’s conduct or performance, he posed a serious risk to persons and it was necessary to take immediate registration action to protect public health and safety. That action was in the form of prohibiting contact with female patients and imposing requirements as to booking, employment and practice locations on the practitioner. The Tribunal has determined that the review should be upheld and the HO’s decision to take immediate registration action should be set aside. The reasons for that decision follow. The contentions between the parties that the Tribunal has to decide to determine whether the practitioner constitutes a serious risk and, if he does, what the appropriate response to that is are: (a)Whether it is inclined to the belief that the practitioner behaved as alleged by Patient A in the last two consultations at the end of the treating relationship? In answering that question, the Tribunal has to consider what weight, if any, to give the evidence of each of Patient A and the practitioner, given the HO’s refusal to make Patient A available for cross-examination; The Tribunal has read and considered all of the material filed on the application, even if parts of it are not specifically referred to in these reasons. The Tribunal, in exercising its review decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act):(a)has all the functions of the decision maker for the reviewable decision being reviewed;[1] (b)has ‘to produce the correct and preferable decision’;[2] and(c)must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[3] [1]QCAT Act s 19(c). [2]QCAT Act s 20(1).[3]QCAT Act s 20(2). The Tribunal can consider material beyond that considered by the HO and it can consider circumstances which have changed or developed since the IA Decision.[4] In this case there is more material as I set out below. [4]AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400, [34]; Pawape v Medical Board of Australia [2023] QCAT 262, [27]. The Tribunal can confirm or amend the decision, set the decision aside and substitute its own decision or set the decision aside and return it to the decision maker for reconsideration with directions considered appropriate.[5] [5]QCAT Act s 24(1). Section 21 of the QCAT Act obliges the HO to use her “best endeavours to help the Tribunal so that it can make its decision on the review.” The Tribunal otherwise agrees with the observations in Pawape v Medical Board of Australia,[6] that in a review hearing, each party has a practical onus to advance their respective positions before the Tribunal.[7] [6][2023] QCAT 262 (‘Pawape’).[7]Pawape, [29]–[31].

Ratio Decidendi

Legal Principle Established

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