Zaphir v Health Ombudsman - [2017] QCAT 193

CITATION:	Zaphir v Health Ombudsman [2017] QCAT 193
PARTIES:	GEORGE ZAPHIR (Applicant)
v
HEALTH OMBUDSMAN (Respondent)
APPLICATION NUMBER:	OCR161-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	30 May 2017
HEARD AT:	Brisbane
DECISION OF:	Judge S Sheridan, Deputy President
DELIVERED ON:	16 June 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of the Health Ombudsman on 16 August 2016 to issue an interim prohibition order is confirmed. 2. The applicant is to file submissions on costs by 4:00pm on 23 June 2017. 3. The respondent is to file submissions on costs by 4:00pm on 30 June 2017.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – HEALTH PRACTITIONERS REGULATION NATIONAL LAW GENERALLY – where the practitioner was an unregistered health practitioner – where the Health Ombudsman took immediate action by issuing an interim prohibition order in relation to the practitioner under s 68 of the Health Ombudsman Act 2013 (Qld) – where the interim prohibition order prohibited the practitioner from any employment (paid or otherwise) in a clinical or non-clinical capacity which relates to the provision of any health service – whether the Tribunal believes the action is necessary to protect public health or safety Health Ombudsman Act 2013 (Qld), s 68, s 94 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2), s 24(1) Colagrande v Health Ombudsman [2017] QCAT 107, cited I v Medical Board of Australia [2011] SAHPT 18, followed Liddell v Medical Board of Australia [2012] WASAT 120, followed Pearse v Medical Board of Australia [2013] QCAT 392, cited WD v Medical Board of Australia [2013] QCAT 614, cited
APPEARANCES:
APPLICANT:	M Smith of Counsel, instructed by Platinum Lawyers
RESPONDENT:	S Lane of Counsel for the Health Ombudsman

REASONS FOR DECISION

Mr Zaphir was a provider of health services. He practised using the business name, “Dynamic Therapies”, from premises situated at 12 Jane Street, West End. On Wednesdays, he practised from rooms located at the back of a business known as “Crystal Connections” located at 19 King Street, Caboolture.
Under cover of a letter dated 14 June 2016, Mr Zaphir was given notice by the Health Ombudsman of a proposed decision. With the letter he was provided information detailing the basis of the complaint together with documentation. The complaint concerned Mr Zaphir’s clinical treatment of Mr Ian Booth, now deceased. In particular, the complaint concerned advice allegedly given to Mr Booth by Mr Zaphir that he could treat and cure a cancerous tumour growing out of Mr Booth’s right eye and Mr Zaphir’s conduct when his treatment ceased.
Mr Zaphir provided three written submissions to the Health Ombudsman. He refuted all the allegations but did not provide any response to the individual allegations made nor any evidence.
On 16 August 2016, the Health Ombudsman decided to take immediate action by issuing an interim prohibition order (IPO) in relation to Mr Zaphir pursuant to s 68 of the Health Ombudsman Act 2013 (Qld) (HO Act). Under the…

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: [2017] QCAT 193
Decision Date: 16 June 2017

CaseChat Overview and Summary

The Health Ombudsman issued an interim prohibition order against the applicant, an unregistered health practitioner, under section 68 of the Health Ombudsman Act 2013 (Qld). The order prohibited the applicant from any employment in a clinical or non-clinical capacity related to the provision of health services. The applicant sought to overturn this order, arguing it was not necessary to protect public health or safety. The case was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issue was whether the interim prohibition order was justified to protect public health or safety. The Tribunal had to consider whether the applicant's conduct posed a risk to public health or safety and if the order was a proportionate response to that risk. The Tribunal also needed to determine if the applicant's lack of registration as a health practitioner justified the order.

The Tribunal found that the applicant's conduct warranted the interim prohibition order. The applicant had been involved in activities that could potentially harm patients, and the order was necessary to prevent further risks to public health and safety. The Tribunal emphasised the importance of maintaining public trust in the health system and preventing unregistered practitioners from providing health services. The Tribunal concluded that the order was a proportionate response to the identified risks and confirmed the Health Ombudsman's decision.

The Tribunal confirmed the interim prohibition order issued by the Health Ombudsman, finding it necessary to protect public health and safety. The applicant was directed to file submissions on costs by 23 June 2017, and the Health Ombudsman by 30 June 2017.

Orders

Orders of the court

1. The decision of the Health Ombudsman on 16 August 2016 to issue an interim prohibition order is confirmed.

2. The applicant is to file submissions on costs by 4:00pm on 23 June 2017.

3. The respondent is to file submissions on costs by 4:00pm on 30 June 2017.

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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