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Queensland Judgments
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  • Unreported Judgment

Health Ombudsman v Callus

 

[2020] QCAT 205

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Callus [2020] QCAT 205

PARTIES:

Health Ombudsman

(applicant)

v

Griffin Callus

(respondent)

APPLICATION NO/S:

OCR001-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Laura Dyer

Mr Stephen Lewis

Mr Brad Taylor

ORDERS:

  1. In relation to Allegation 1, 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.
  2. In relation to Allegation 2, pursuant to section 107(2) (a) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has no case to answer and no further action is to be taken in relation to the matter.
  3. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months.
  5. The interim non-publication order made on 29 March 2019 is discharged.
  6. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
    1. (a)
      the contents of a document or thing filed in or produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal;

is prohibited to the extent that it may identify or lead to the identification of any patient.

  1. Each party to the proceeding must bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was an endorsed enrolled nurse – where the referral alleges professional misconduct and unprofessional conduct – where the respondent was employed as an endorsed enrolled nurse in the mental health unit of a public hospital – where the alleged professional misconduct and unprofessional conduct involved the respondent’s relationship with a patient of the mental health unit – where the respondent committed boundary violations including sexual misconduct – whether such conduct should be characterised as professional misconduct – where the respondent permitted the patient to leave the mental health unit to smoke on the hospital grounds – whether such conduct should be characterised as unprofessional conduct – what sanction should be imposed

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Health Ombudsman v HSK [2018] QCAT 419

Nursing and Midwifery Board v Evans [2016] QCAT 77

Nursing & Midwifery Board of Australia v Isgrove [2015] QCAT 522

REPRESENTATION:

Applicant:

Director of Proceedings in behalf of the Health Ombudsman

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    This is a referral of a health service complaint against Griffin Callus (“respondent”) pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”) by the Director of Proceedings on behalf of the Health Ombudsman (“applicant”).
  2. [2]
    The respondent was first registered as an enrolled nurse in 2007. The respondent was 40 years of age at the time of the conduct the subject of the referral. The respondent has no previous disciplinary history and had not been the subject of a complaint until the matter the subject of the referral.
  3. [3]
    From October 2012 until May 2014, the respondent was employed as an endorsed enrolled nurse in the mental health unit of a public hospital.  The conduct the subject of the referral concerns the respondent’s relationship with a patient of the mental health unit during April 2014. The patient was aged in her early twenties at the time of the conduct and admitted to the mental health unit subject to an involuntary treatment order. The treating relationship between the respondent and the patient commenced in late March 2014 and a sexual relationship commenced about two weeks later.
  4. [4]
    The referral particularises two “Allegations”, one of alleged professional misconduct and one of alleged unprofessional conduct.
  5. [5]
    Allegation 1, the allegation of professional misconduct, particularises six events that occurred in April 2014:
    1. (a)
      The respondent and the patient had sexual intercourse in the treatment room of the mental health unit;
    2. (b)
      The following day, the respondent and the patient kissed and hugged each other in the treatment room;
    3. (c)
      About two weeks later, the patient performed oral sex on the respondent in a storeroom of the mental health unit;
    4. (d)
      About a week later, the respondent and the patient had sexual intercourse in the respondent’s car which was parked on hospital grounds;
    5. (e)
      The respondent arranged to meet the patient the following day to have sexual intercourse in the respondent’s car but this did not eventuate;
    6. (f)
      The following day, the respondent and the patient had sexual intercourse in the men’s bathroom of an auditorium located on hospital grounds.
  6. [6]
    During the course of investigations of his conduct by his employer, the Australian Health Practitioners Regulation Agency (AHPRA) and the Office of the Health Ombudsman, and during the course of the proceedings before the Tribunal, from May 2014 until April 2019, the respondent falsely and adamantly denied the alleged conduct. He denied having breached professional boundaries and constructed and maintained a false account of events in purporting to explain some movements of himself and the patient on one day that had been recorded on hospital CCTV. It was not until mid-April 2019, following a compulsory conference held at the direction of the Tribunal, that the respondent admitted the conduct the subject of Allegation 1.
  7. [7]
    The Tribunal finds such conduct proved to its satisfaction. Such conduct is an extremely serious example of the violation of the boundaries required in a proper therapeutic nurse-patient relationship. It involved the sexual exploitation of a much younger vulnerable mentally ill patient. It obviously carried with it the potential for great harm to the patient. It involved an extended course of conduct with great efforts at secrecy to enable it. Such conduct was exacerbated by the respondent’s protracted dishonest attempts to hide the truth and escape the consequences of his misconduct. In relation to Allegation 1, 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.
  8. [8]
    Allegation 2, the allegation of unprofessional conduct, is particularised that the respondent allowed the patient to leave the mental health unit to undertake smoking on hospital grounds.
  9. [9]
    The conduct is alleged to have occurred on the same day as the last episode of sexual misconduct the subject of Allegation 1. In written submissions from his solicitors to AHPRA in August 2014, the respondent stated that he agreed to the patient’s request on that day to accompany him leaving the mental health unit during his lunch break to smoke cigarettes. He agreed that he was aware that hospital policy required him to smoke off hospital grounds but stayed on the grounds because he was accompanied by the patient. At the same time, the respondent denied the allegations of sexual misconduct that followed the patient leaving the mental health unit that day.
  10. [10]
    “Unprofessional conduct” is primarily defined in section 5 of the Health Practitioner Regulation National Law (Queensland) as “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”.
  11. [11]
    It may be inferred that the respondent’s primary motivation in leaving the mental health unit with the patient on the day in question was for purposes of sexual gratification rather than any desire of the patient for a cigarette. The respondent’s conduct in that regard has been addressed in the finding of professional misconduct as regards Allegation 1. Whether the respondent’s admitted conduct in permitting the patient to smoke on hospital grounds in breach of hospital policy should be characterised as unprofessional conduct would require consideration of issues including the terms of applicable policies, procedures and legislative requirements relating to the restrictions on movement of patients subject to involuntary treatment orders and the consumption of cigarettes on hospital grounds as well as the real life practices of hospital management and staff at the relevant time in relation to such matters. Proper consideration of those matters is not possible on the material before the Tribunal and in circumstances where the matter has been heard on the papers at the request of the applicant. On the material before the Tribunal, the Tribunal cannot be satisfied to the requisite standard that the admitted conduct should be characterised as unprofessional conduct. In relation to Allegation 2, pursuant to section 107(2)(a) of the HO Act, the Tribunal decides that the respondent has no case to answer and no further action is to be taken in relation to the matter.
  12. [12]
    On 1 May 2014, the patient raised allegations about a sexual relationship with the respondent with treating practitioners at the hospital.  On 5 May 2014, the respondent was suspended from his employment with full pay whilst the matters were investigated. On 8 August 2014, the respondent entered into an undertaking with the Nursing and Midwifery Board of Australia not to practise as a nurse outside his employment with Queensland Health. On 20 February 2015, the respondent was terminated from his employment for engaging in a sexual relationship with the patient.
  13. [13]
    The respondent let his registration lapse in 2015 and has remained unregistered since that time. The respondent has advised that he has no intention of returning to the nursing profession.
  14. [14]
    In written submissions dated 31 May 2019, the applicant submitted that the respondent should be publically reprimanded and prohibited from applying for re-registration as a registered health practitioner for a period of at least two years. The applicant referred to comparable cases, including decisions of this tribunal in Health Ombudsman v HSK [2018] QCAT 419, Nursing and Midwifery Board v Evans [2016] QCAT 77, and Nursing & Midwifery Board of Australia v Isgrove [2015] QCAT 522, in support of such submission.
  15. [15]
    The respondent has declined the opportunity to make submissions.
  16. [16]
    In considering the appropriate sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. The purposes of sanction are protective, not punitive. Protection of the public includes the maintenance of professional standards and upholding public confidence in the standards of the profession.
  17. [17]
    The Tribunal accepts that the orders for sanction proposed by the applicant are appropriate to meet the protective purposes of sanction. The respondent’s egregious conduct requires denunciation by way of a reprimand. Determination of any necessary period of further preclusion from practice requires consideration of the fact that the respondent has, as a consequence of his conduct, been precluded from practice for the past six years. Considerations of procedural fairness mean that the Tribunal should not impose a disqualification from applying for re-registration longer than that sought by the applicant. Given the time that has elapsed since the applicant’s submissions, that period of disqualification should be one of 12 months.
  18. [18]
    On 29 March 2019, the Tribunal made an interim non-publication order pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Such order prohibited “identification of any patient, or any family member of any such patient, or of the Hospital and Health Service, or of the Hospital, or any employees and contractors of the Hospital and Health Service”. The applicant ultimately did not seek orders that continued to prohibit non-publication of the identity of “the Hospital and Health Service, or of the Hospital, or any employees and contractors of the Hospital and Health Service”. This was an appropriate concession by the applicant as a non-publication order should not operate more widely than is necessary to achieve the specified purposes in section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Prohibition of publication of the identity of the patient and any other patients should continue and the Tribunal will make orders to maintain that.
  19. [19]
    The applicant did not seek any order for costs and there is no reason why the usual position should not apply and be reflected in the orders of the Tribunal.
  20. [20]
    Accordingly, the Tribunal orders as follows:
  1. In relation to Allegation 1, 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.
  2. In relation to Allegation 2, pursuant to section 107(2) (a) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has no case to answer and no further action is to be taken in relation to the matter.
  3. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months.
  5. The interim non-publication order made on 29 March 2019 is discharged.
  6. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
    1. (a)
      the contents of a document or thing filed in or produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal;

is prohibited to the extent that it may identify or lead to the identification of any patient.

  1. Each party to the proceeding must bear the party’s own costs for the proceeding.
Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Callus

  • Shortened Case Name:

    Health Ombudsman v Callus

  • MNC:

    [2020] QCAT 205

  • Court:

    QCAT

  • Judge(s):

    Allen J

  • Date:

    29 Jul 2020

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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