Health Ombudsman v ORC [2020] QCAT 181

Date: 22 June 2020
Court/Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Judge Allen QC, Deputy President
Human Rights Act 2019 (Qld) Sections: ss 31(3), 108(2)(a)
Rights Considered: Right to a fair hearing: all judgments and decisions must be publicly available
Other Legislation: Health Ombudsman Act 2013 (Qld) ss 66, 103, 104, 107; Health Practitioner Regulation National Law (Queensland) s 5

Keywords: Health care; Employment; Fair hearing; Unprofessional conduct

The right to a fair hearing, specifically the right to have all judgments and decisions made publicly available (Human Rights Act 2019 (Qld) s 31(3)) was noted by the Tribunal. It was ordered that due to delays in the matter, publication of materials which could identify the respondent was prohibited.

This case concerned behaviour by a medical professional (‘the respondent’) that constituted unprofessional conduct, pursuant to the Health Ombudsman Act 2013 (Qld). The conduct occurred in February 2014 when a female patient attended the clinic to undergo sexual health tests performed by the respondent: at [4]. During the appointment, the respondent invited the patient to have a drink later that evening and both exchanged mobile numbers. They did go out together that evening. The respondent sent a series of text messages to the patient the following day inviting further contact, at which time the patient communicated to the respondent that meeting again would not be a ‘good idea’: at [5]-[8].

The Tribunal held that the respondent’s conduct breached the professional boundaries doctors must maintain between themselves and their patients: at [9].The Tribunal was required to determine whether or not the respondent’s conduct constituted ‘unprofessional conduct’ or ‘professional misconduct.’ Pursuant to s 5 of the Health Practitioner Regulation National Law (Queensland), ‘unprofessional conduct’ included ‘professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner's professional peers’: at [12]. ‘Professional misconduct’ included unprofessional conduct that ‘amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’: at [13].

There was substantial delay between the time of the complaint and subsequent regulatory action which was not ‘the fault of the respondent but which has significantly impacted upon the respondent’: at [17]. Whilst the delay was ‘significant’ and led to ‘stress and anxiety’, it gave the respondent ‘the opportunity to demonstrate his full rehabilitation’ by complying ‘with stringent conditions on his registration for a lengthy period’ and no further complaints were lodged in respect of the respondent. On this basis, the Tribunal was satisfied that ‘such conduct is unlikely to be repeated’: at [31].

In relation to the Human Rights Act 2019 (Qld), the Tribunal noted the terms of ss 31(3) and 108(2)(a): at [43]. The Tribunal noted that publishing contents of the Tribunal’s decisions promotes ‘public confidence in the maintenance of professional standards’ for health professionals, however it determined that, in this particular case, questions arose whether it was in the interests of justice to name and shame the respondent given the ‘inordinate delay’: at [44]-[45]. Ultimately, the Tribunal ordered that in the interests of justice, the publication of orders, reasons, and any material before the Tribunal was ‘prohibited to the extent that it might identify the respondent’: at [45].

Visit the reported judgement: Health Ombudsman v ORC [2020] QCAT 181