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Queensland Judgments
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  • Unreported Judgment

Health Ombudsman v Ku

 

[2019] QCAT 377

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Health Ombudsman v Ku [2019] QCAT 377

PARTIES:

HEALTH OMBUDSMAN

 

(applicant)

 

v

 

chi-yu (tiffany) KU

 

(respondent)

APPLICATION NO/S:

OCR115-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

  1. Pursuant to section 126(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal conducts the hearing of this disciplinary proceeding without the assistance of assessors.
  2. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  3. Pursuant to section 207(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  4. Pursuant to Section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes the following conditions on the respondent’s registration:

The respondent must undertake and successfully complete an education program on ethics as approved by the National Board and including a reflective practice report, as follows:

  1. (a)
    Within one month of the notice of the imposition of this condition, the respondent must nominate in writing for approval by the National Board a program of education on ethics, including a copy of the curriculum of the education program;
  2. (b)
    After receiving the National Board’s approval of the nominated education program, the respondent must register for the next available approved education program;
  3. (c)
    Within one month of completing the approved education program, the respondent must provide to the National Board:
    1. evidence of successful completion of the education program;
    2. a reflective practice report demonstrating, to the satisfaction of the National Board, that the respondent has reflected on the issues that gave rise to this condition and how the respondent has incorporated the lessons learnt in the education into the respondent’s practice;
  1. Pursuant to section 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, part 7, division 11, subdivision 2 applies to the conditions imposed on the respondent’s registration.
  2. Pursuant to section 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions imposed on the respondent’s registration is six months.
  3. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OPTICIANS AND OPTOMETRISTS – DISCIPLINARY PROCEEDINGS – where the respondent was referred by the applicant following her conviction for a number of offences involving credit card fraud – where the respondent demonstrated insight and remorse – where the respondent suffered deterrent consequences of her conduct including the loss of her employment, criminal sentencing and the suspension of her registration pursuant to immediate action – where the parties agree as to the facts - where the parties agree as to the characterisation of the conduct as professional misconduct – where the parties agree as to the appropriate sanction – whether the proposed sanction is appropriate

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS  – where s 126(1) of the Health Ombudsman Act 2013 (Qld) requires the Queensland Civil and Administrative Tribunal to be assisted by one assessor from the public panel of assessors and two assessors from the professional panel of assessors when hearing disciplinary proceedings relating to a registered health practitioner – where s 126(2) of the Health Ombudsman Act 2013 (Qld) permits the Tribunal to conduct hearings without the assistance of assessors if the Tribunal is satisfied it is necessary because of the urgency of the matter – whether the matter should be conducted without the assistance of assessors

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107, s 109, s 126
Health Practitioner Regulation National Law (Queensland), s 5

REPRESENTATION:

 

Applicant:

Director of Proceedings, on behalf of the Office of the Health Ombudsman

Respondent:

Meridian Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) referred a health service complaint against Chi-Yu (Tiffany) Ku (“the respondent”) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”). 
  2. [2]
    The Tribunal has jurisdiction to hear the matter pursuant to s 94(1)(b) of the HO Act.  The proceeding is thus a “disciplinary proceeding” as defined in Schedule 1 of the HO Act.  Section 126 of the HO Act provides as follows:

126 Tribunal to be assisted by assessors

  1. (1)
    In conducting a hearing of a disciplinary proceeding relating to a registered health practitioner, the tribunal must be assisted by—
  1. (a)
    1 assessor chosen by the principal registrar from the public  panel of assessors; and
  1. (b)
    2 assessors chosen by the principal registrar from—
  1. (i)
    the professional panel of assessors for the practitioner’s profession; or
  1. (ii)
    if the practitioner is registered in more than 1 profession—the panel of assessors for the profession to which the disciplinary proceeding relates.
  1. (2)
    Despite subsection (1), QCAT may conduct a hearing of a disciplinary proceeding without the assistance of assessors if QCAT is satisfied it is necessary because of the urgency of the matter.
  1. [3]
    I am advised by the principal registrar of the Tribunal as follows:
    1. (a)
      there is currently only one member of the optometrists panel of assessors;
    2. (b)
      it is likely to be some months before any further appointment, pursuant to section 118 of the HO Act, of any additional member of the optometrists panel of assessors; and
    3. (c)
      it is unlikely that, in the meantime, there would be any urgent appointment, pursuant to section 119 of the HO Act, of any additional member of the optometrist’s panel due to the government approvals required and impending public holidays.
  2. [4]
    In light of those circumstances and given that the respondent’s registration remains suspended, apparently pending resolution of these proceedings, and the applicant not contending that any further period of preclusion from practice is appropriate, the Tribunal sought submissions from the parties as to whether the Tribunal might properly conduct a hearing of the matter without the assistance of assessors, pursuant to section 126(2) of the HO Act, because of the urgency of the matter. 
  3. [5]
    The parties jointly responded as follows:

The parties submit the matter could proceed without the assistance of assessors given the following:

  1. the parties have engaged further since the filing of submissions and there are now no substantive issues in dispute regarding the facts of the matter or proposed sanctions; and
  1. in terms of urgency, the respondent has now been suspended (by the Optometry Board) for almost 3.5 years and precluded from employment in that profession – the parties understand that if the matter does not proceed to hearing as proposed, the matter will likely not be heard until next year.
  1. [6]
    The parties also jointly submitted that the matter could be appropriately heard “on the papers”. 
  2. [7]
    It is clearly not a sufficient basis for the Tribunal to exercise its discretion pursuant to section 126(2) of the HO Act to conduct a hearing without the assistance of assessors that there are no issues in dispute between the parties as to the facts of the matter or a proposed sanction, although such a consideration is a relevant one in the exercise of the discretion if the circumstances of urgency required by section 126(2) of the HO Act exist.  Neither is it sufficient for an exercise of the discretion that there is an unavailability of the requisite assessors.  The precondition for any exercise of discretion pursuant to section 126(2) of the HO Act is the Tribunal’s satisfaction that hearing the proceeding without the assistance of assessors “is necessary because of the urgency of the matter.”
  3. [8]
    In circumstances where the respondent remains precluded from practice pending the determination of the proceedings, the applicant does not submit that any further preclusion from practice is appropriate and the respondent is likely to remain precluded from practice for a significant period if the Tribunal were to await the appointment of a further member of the optometrists panel of assessors, the Tribunal is satisfied that hearing the proceeding without the assistance of assessors is necessary because of the urgency of the matter.  The basis for the exercise of the discretion is established.  In light of all the circumstances that have been detailed including the parties’ joint submissions that the Tribunal should proceed in such fashion, the Tribunal will exercise its discretion to conduct a hearing of this proceeding without the assistance of assessors. 
  4. [9]
    The Tribunal also accedes to the joint request of both parties that the matter be heard and determined on the papers.
  5. [10]
    The respondent was first registered as an optometrist on 10 December 2014.  She was 24 years of age and in her first employment as an optometrist in the optometry section of a major retail chain store when her misconduct occurred in 2015.  The respondent’s misconduct comprised offences of dishonesty committed against patients of the optometry service.  The respondent recorded patients’ credit card details and used the details to make online purchases of items that were delivered to the address of a friend.  Most of those dishonestly obtained items were then returned to the vendors by the respondent for refunds made to the respondent’s bank card.
  6. [11]
    An investigation of fraudulent online credit card purchases led police to search the respondent’s residence and arrest the respondent.  The respondent initially denied involvement in any offences.  She later volunteered to participate in a further police interview during which she made full admissions. On or about 24 February 2016, the respondent was charged by police with offences relating to credit card fraud. 
  7. [12]
    By correspondence dated and sent to the Australian Health Practitioner Regulation Agency (“AHPRA”) on 29 February 2016, the respondent notified AHPRA of being charged by police in relation to credit card fraud.
  8. [13]
    The respondent’s employment was terminated on 2 March 2016.
  9. [14]
    On 25 May 2016, the respondent appeared before the Magistrates Court at Brisbane and pleaded guilty to 99 offences of dishonesty, namely 82 offences of fraud contrary to section 408C of the Criminal Code 1899 (Qld) and 17 offences of obtaining or dealing with identification information contrary to s 408D of the Criminal Code 1899 (Qld).  The respondent was sentenced to 18 months imprisonment with immediate parole release.  The respondent was also ordered to pay almost $53,000 compensation for which the respondent presented a cheque on the day of sentencing.
  10. [15]
    The respondent’s registration was suspended by the Immediate Action Committee of the Optometry Board of Australia (“the Board”) on 5 July 2016 and remains suspended pending the determination of this proceeding.
  11. [16]
    The applicant submits and the respondent accepts that her conduct should be characterised as professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (“National Law”).  Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  12. [17]
    Turning to the matter of sanction, the main principle for administering the HO Act is that the health and safety of the public are paramount.  Purposes of sanction are protective, not punitive.  Considerations of denunciation and general and personal deterrence are relevant in this context.  Purposes of sanction include assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated, bringing home to the practitioner the seriousness of their conduct, and deterring the practitioner and any other members of the profession from future departures from appropriate standards.  Considerations as to whether the practitioner presents any ongoing risk will be important.  The degree of insight and evidence of rehabilitation will be relevant.
  13. [18]
    The Tribunal has before it a report of Dr Mariani, Clinical Psychologist, who examined the respondent in November and December 2015 and 5 February 2019.  Dr Mariani expresses the opinion that at the time of the offending the respondent was suffering from an adjustment disorder with mixed anxiety and depressed mood in the background of chronic stress and anxiety borne of trying to please her parents in the context of a family culture characterised by high academic and vocational success and parental obedience.  Personality testing suggested that the respondent had low self- esteem, a tendency to perceive rejection by others, some emotional lability and impulsive tendencies and it is likely that a synergistic effect between such factors in her mood state disorder culminated in the commission of the offending behaviour.  Dr Mariani was of the opinion that the respondent’s likelihood of reoffending was low, particularly since the trigger to her offending (projecting financial success to her parents) had largely abated.  The respondent reported great shame and immense feelings of guilt for her behaviour.  She had attended psychological therapy which had helped her in understanding her thought processes and behaviour and was committed to making lifelong changes.
  14. [19]
    The respondent has also demonstrated her insight and remorse by making admissions to police, entering early pleas of guilty to the criminal charges, making financial compensation to her victims, and in her conduct of the proceedings before the Tribunal. Referees who hold the respondent in high regard also refer to her remorse.
  15. [20]
    Given the respondent’s demonstrable insight and remorse and the salutary deterrent effect of the consequences already suffered by the respondent as a result of her conduct by way of termination of her employment, criminal sentencing and suspension of her registration, considerations of personal deterrence do not loom large in determination of sanction.  There is nothing to suggest that the respondent would present any risk to patient safety in her future practice and no further preclusion from practice is required to meet the protective purposes of sanction.  The serious consequences suffered by the respondent as a result of her conduct, as well as the denunciation demonstrated by a finding of professional misconduct and a reprimand, adequately meet considerations of general deterrence.  In these circumstances, the Tribunal accepts the submissions by both parties that no further preclusion from practice is required to meet the protective purposes of sanction. 
  16. [21]
    The Board’s decision to take immediate action to suspend the registration of the respondent continues to have effect until the Board revokes that suspension.[1] Pursuant to section 205(1) of the National Law, a National Board must give effect to a decision of an adjudication body.  The applicant submits that if the Tribunal did make orders not requiring any further preclusion from practice of the respondent the Board would, necessarily, revoke the current suspension and impose any conditions ordered by the Tribunal on any future grant of registration to the respondent.  It is certainly the Tribunal’s intention that the respondent be no longer precluded from practice.  So as to facilitate any requisite orders by the Board, copies of these reasons will be provided to the Board and the Australian Health Practitioner Regulation Agency.
  17. [22]
    Both parties submit that the respondent should be reprimanded.  The respondent’s egregious breach of the trust of her employer, patients and profession deserve denunciation by the Tribunal.  A reprimand is not a trivial penalty.  It is a matter of public record affecting the reputation of the practitioner.  The Tribunal does not doubt that such an order will exacerbate the levels of shame and remorse already suffered by the respondent.  Nevertheless, the protective purposes of sanction require such public denunciation of the respondent’s conduct.
  18. [23]
    Both parties have jointly submitted that the Tribunal should place conditions on the registration of the respondent requiring her to undertake and successfully complete an education program on ethics.  Given the consequences already suffered by the respondent and her demonstrable shame and remorse, the Tribunal queried the need for such conditions and sought further submissions from the parties as to why such conditions should be imposed.  The applicant provided detailed submissions as to why such conditions were appropriate.  The respondent provided submissions agreeing with the submissions of the applicant and confirming that the respondent did not oppose such conditions being placed upon her registration.  The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties.  Nevertheless, where parties have reached an agreed position that should only be departed from if it falls outside an appropriate range of sanction for the conduct.  The proposed conditions do not fall outside an appropriate range of orders for sanction and the Tribunal will accede to the parties’ request that such conditions be placed on the registration of the respondent. 
  19. [24]
    Pursuant to section 109(2) of the HO Act, the National Law, part 7, division 11, subdivision 2 will apply to the conditions and the review period and pursuant to section 109(3) of the HO Act the review period for the conditions will be six months.
  20. [25]
    The applicant did not seek any order for costs.
  21. [26]
    Accordingly, the Tribunal orders as follows:
  1. Pursuant to section 126(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal conducts the hearing of this disciplinary proceeding without the assistance of assessors.
  2. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  3. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  4. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes the following conditions on the respondent’s registration:

The respondent must undertake and successfully complete an education program on ethics as approved by the National Board and including a reflective practice report, as follows:

  1. (a)
    Within one month of the notice of the imposition of this condition, the respondent must nominate in writing for approval by the National Board a program of education on ethics, including a copy of the curriculum of the education program;
  2. (b)
    After receiving the National Board’s approval of the nominated education program, the respondent must register for the next available approved education program;
  3. (c)
    Within one month of completing the approved education program, the respondent must provide to the National Board:
    1. evidence of successful completion of the education program;
    2. a reflective practice report demonstrating, to the satisfaction of the National Board, that the respondent has reflected on the issues that gave rise to this condition and how the respondent has incorporated the lessons learnt in the education into the respondent’s practice;
  1. Pursuant to section 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, part 7, division 11, subdivision 2 applies to the conditions imposed on the respondent’s registration.
  2. Pursuant to section 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions imposed on the respondent’s registration is six months.
  3. Each party must bear the party’s own costs for the proceeding.

Footnotes

[1]National Law, section 159(2).

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Ku

  • Shortened Case Name:

    Health Ombudsman v Ku

  • MNC:

    [2019] QCAT 377

  • Court:

    QCAT

  • Judge(s):

    Allen QC DP

  • Date:

    16 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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