Health Ombudsman v Thampi[2023] QCA 57

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P: For the reasons given by Bond JA, I joined in the orders made by the Court on 24 March 2023.
2. [2]
   BOND JA: On 24 March 2023, the Court heard argument on an appeal from a decision made by a judicial member of the Queensland Civil and Administrative Tribunal (QCAT), and, for reasons to be published at a later date, made the following orders:

1. The appeal is allowed.
2. The tribunal’s ruling that, on the proper construction of s 58 of the Health Ombudsman Act 2013, s 58(1)(d) does not apply in this case is set aside.
3. The matter is returned to the tribunal to reconsider in accordance with the law and, in particular, to consider whether, on the facts of the case and having regard to s 58(1)(d), any other decision should be made by the tribunal in lieu of, or in addition to, paragraphs 1 and 2 of the tribunal’s decision as further amended on 14 March 2023.
4. The respondent must pay the appellant’s costs of the appeal.
5. The respondent is granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973.

3. [3]
   These are my reasons for joining in the making of those orders.
4. [4]
   The appellant before this Court (the Ombudsman) is an independent statutory authority created under the Health Ombudsman Act 2013 (the Act). Amongst other things she is responsible for managing health service complaints in Queensland. The respondent is a registered health practitioner (the practitioner).
5. [5]
   By letter dated 26 May 2022, having received information that the practitioner had been charged with two sexual assault offences against female child patients, the Ombudsman informed the practitioner that she had decided to immediately suspend the practitioner’s registration by taking “immediate registration action” under s 58(1)(a) and (d) of the Act. “Immediate registration action” is defined in s 57 as “the suspension of, or imposition of a condition on, the practitioner’s registration”.
6. [6]
   Section 58 is in the following terms:

“58Power to take immediate registration action

3. (1)
   The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if –

1. (a)
   the health ombudsman reasonably believes that –

1. (i)
   because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and

2. (ii)
   it is necessary to take the action to protect public health or safety; or

2. (b)
   the health ombudsman reasonably believes the practitioner’s registration was improperly obtained because the practitioner or someone else gave a National Board information or a document that was false or misleading in a material particular; or

3. (c)
   the practitioner’s registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction under the National Law; or

4. (d)
   the health ombudsman reasonably believes the action is otherwise in the public interest.

Example of when action may be taken in the public interest –

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners.”

7. [7]
   The Ombudsman advised the practitioner that she had formed the reasonable beliefs identified in s 58(1)(a)(i) and (ii).
8. [8]
   As to s 58(1)(a)(i) the Ombudsman wrote that she had formed the reasonable belief that the practitioner’s health conduct or performance posed a serious risk to persons for the following reasons:

“.Your alleged conduct, in sexually assaulting two highly vulnerable female child patients, demonstrates a gross abuse of your position and a serious lack of care and ethical behaviour in the practise of your profession.

.The sexual exploitation of these young patients suggests a willingness to disregard the serious harm that your patients could suffer as a result of you pursuing your own sexual interests over and above their health and wellbeing.

.Your alleged conduct occurred in two separate appointments but was of a virtually identical nature with both patients. This indicates intentional use of a specific medical procedure to allow you opportunity to assault them, which presents a clear risk to future patients.

.As a medical practitioner you are in a position of power and trust with your patients, who are often in a vulnerable state and depend upon you to conduct yourself ethically and professionally. I note that both patients were of a young age and [a named complainant] was seeing you for mental health reasons; they were alone and particularly vulnerable. Your conduct raises serious concerns about whether you can be relied upon to act appropriately towards such patients and not abuse their trust, and this places the public at serious risk of harm.

.The nature of your alleged conduct has resulted in you being charged with serious sexual offences.”

9. [9]
   As to s 58(1)(a)(ii) the Ombudsman wrote that that she had formed the reasonable belief that immediate registration action was necessary to protect public health or safety for the following reasons:

“24.In light of the information and documents outlined above regarding your alleged conduct, I have formed a reasonable belief that it is necessary to take immediate action to protect public health and safety for the following reasons:

.There are currently no restrictions on you being employed as a medical practitioner in the community and from being actively involved in the treatment and care of vulnerable female and/or child patients.

.Taking immediate registration action against you will act as a protective measure for public health and safety until the outcome of the criminal process is known.

3. 25.
   I have considered my obligation to take the least onerous action against you. Given that the allegations and charges relate to the sexual assault of female child patients, I believe you pose a risk both to child patients of any gender and female patients of any age.

3. 26.
   To mitigate this specific risk, I believe that imposing conditions on your registration which prohibit you from any contact with both female patients of any age, and also patients under the age of 18 of any gender, is the least onerous action required.

3. 27.
   However, mitigation of risk is only one of the bases for my decision to take immediate registration action under the Act. Given your alleged conduct is accompanied by serious criminal charges, I am also taking immediate registration against you because it is ‘otherwise in the public interest’. For the reasons given below, I believe this additional ground for my decision requires a suspension of your registration, and as such overrides the conditions I would have imposed if I were proceeding on the basis of serious risk alone.”

10. [10]
    It was evident from paragraphs 25 to 27 of the Ombudsman’s reasons that, but for her views concerning “otherwise in the public interest”, the Ombudsman would have dealt with the concerns raised by the charges by reference to a condition on the practitioner’s registration. She explained her thinking by also advising the practitioner that she had formed the reasonable belief identified in s 58(1)(d) and that it formed an additional and separate basis on which she had decided to suspend the practitioner’s registration. She explained her reasons for forming that belief in these terms:

“29.I am satisfied that it is necessary to suspend your registration under section 58(1)(d). To be clear, this is an additional and separate basis on which I have decided to suspend your registration.

3. 30.
   Under this public interest provision there may be circumstances in which immediate registration action is required to be taken to maintain public confidence in the provision of services by registered medical practitioners.

3. 31.
   You have been charged with two serious sexual offences committed against children. The sexual assault offence attracts a maximum penalty of 10 years in prison, and the indecent treatment of children under 16 offence attracts a maximum penalty of 15 years in prison. I consider them serious offences.

3. 32.
   It is in the public interest for the community to have confidence in the integrity and trustworthiness of medical practitioners who have access to, and are required to treat, patients in highly vulnerable positions. This foundation of trust is imperative for the public to seek, and receive, safe and effective medical care.

3. 33.
   If you were to be permitted to continue practising, in circumstances where you are subject to charges alleging that you have sexually assaulted two children you were entrusted to professionally treat and care for, there is a real risk that public confidence and trust in the medical profession would be significantly undermined.

3. 34.
   The need to take a particular form of immediate action in the public interest is not restricted by whether there is evidence awide section of the public are aware of the charge. It is determined by considering matters relevant to the public’s interest in safe and ethical practice by Health Practitioners. As such I note ‘the public interest [is not] to be equated with the ‘supposed views of the great mass of the public’. The public interest is a matter for broad judgment having regard to the nature of the profession […] the demands and opportunities it presents for misconduct.’

3. 35.
   I take into account the presumption of innocence to which you are entitled, and that the QP9 is a summary of the allegations. However, the fact that two alleged victims have, independently of each other, made very similar allegations against you, is an aggravating factor. Also, as outlined above, the existence of charges can be a sufficient basis to take immediate action.

3. 36.
   The need to maintain public confidence in the medical profession must also be weighed against the potential impact of my decision on you. While I appreciate the personal and financial ramifications for you having your registration suspended, I consider that it is an appropriate and proportionate response in the circumstances. Children are some of the most vulnerable members of the community, and the trust and integrity of those who provide medical care and treatment to them is a significant public interest concern. Given the specific, repetitious, and serious nature of your alleged offending against two young girls during a consultation, I believe public confidence in the medical profession would be severely compromised if you were permitted to practice with conditions on your registration.

3. 37.
   As such, I believe that suspending your registration is the only way I can satisfy the regulatory requirement for me to uphold public confidence in the provision of health services.”

11. [11]
    It appears that after the immediate registration action was taken, the practitioner was charged with two further sexual offences involving two further female patients, taking the total number of charges to four involving four separate female patients.
12. [12]
    Section 94(1)(a) of the Act provides that QCAT has jurisdiction to review a decision by the Ombudsman to take immediate registration action in relation to a registered health practitioner. In so doing, QCAT is exercising the review jurisdiction conferred on it by Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act): see ss 94(5) and 96(3) of the Act. For such a review, QCAT is required to be constituted by a judicial member and the judicial member sits with assessors appointed pursuant to Part 10 Division 6 of the Act.
13. [13]
    Division 3 of Part 1 of the QCAT Act provides for the way in which the judicial member must exercise QCAT’s review jurisdiction. It suffices presently to note that the purpose of the review is to conduct a fresh hearing on the merits so as to arrive at the correct and preferable decision: see s 20 of the QCAT Act. In doing so, the judicial member must decide the review in accordance with both the QCAT Act and the Act and has all the functions which the Ombudsman had for the reviewable decision: s 19 of the QCAT Act.
14. [14]
    As the practitioner was entitled to do, the practitioner sought to review the decision of the Ombudsman by application to QCAT. The bases on which the practitioner contended that the decision was wrongly or not properly made were set out in his application for review in these terms:

“I have been suspended from practising as medical practitioner on the basis of allegations made against me which have not been proven and which I intend to challenge in criminal proceedings.

While I understand the seriousness of the allegations that have been made against me, any concern that I pose a specific risk to patients of any gender under the age of 18 years, or even female patients generally, can be adequately met by imposing a condition upon my registration that prohibits me from treating female patients of any age and from treating patients of any gender under the age of 18 years.

Further, to ensure that public confidence in the medical profession is not undermined by permitting my registration to continue, whilst subject to those proposed conditions, informed members of the community would appreciate that I am entitled to the presumption of innocence in relation to both of the charges and that the response of imposing significant restrictive conditions upon my rights to practice as a Doctor is proportionate and reasonable given the nature of the allegations that have been made against me.”

15. [15]
    The practitioner also stated as other facts he thought were important:

“I intend challenging each of the allegations made against me in criminal proceedings. I have been advised by my lawyers that the resolution of those charges may take at least eighteen months. I rely upon my registration as a medical practitioner for my livelihood. My family and I will suffer significant financial hardship if I am unable to continue to work as a medical practitioner until the time that the charges are determined in the criminal proceedings. Further, I will need to provide funds to my lawyers to defend the allegations against me in the criminal proceedings and I will have difficulty doing so if Iam not able to earn income as a medical practitioner during that period of time.”

16. [16]
    By his application for review, the practitioner sought an order that suspension be lifted until the finalisation of his criminal charges subject to a condition that he would not treat any patients under the age of 18 years and that he would not treat female patients of any age.
17. [17]
    The application for review was heard by a judicial member of QCAT, assisted by a panel comprising one assessor chosen by the principal registrar from the public panel of assessors and two assessors chosen by the principal registrar from the medical practitioners panel of assessors.
18. [18]
    On 6 March 2023 the judicial member of QCAT assisted by that panel issued a decision to set aside the decision made by the applicant before this Court and to impose a decision that the practitioner be permitted to practice subject to conditions. During the course of hearing the application, the practitioner by his counsel had reformulated the condition proposed in the application for review and the orders made reflected the judicial member’s acceptance of the condition proposed. The terms of that order were slightly amended by an amended order published 9 March 2023 and a further amended order published 14 March 2023. It suffices to identify the condition by reference to the final amended version of the decision which was that QCAT imposed on the registration of the practitioner the conditions set out in aschedule of which the relevant condition was as follows:

“Scope of Practice

3. (1)
   The practitioner must not practise as a registered health practitioner, with the exception of contact with male patients using telehealth platforms.”

19. [19]
    The judicial member gave ex tempore reasons for her decision. As to those reasons, the following observations may be made:

    1. (a)
       The judicial member ruled that s 58(1)(d) of the Act did not apply to the case before her. She reached that conclusion on the proper construction of the Act and without considering whether or not any order other than the imposition of conditions was justified because it was otherwise in the public interest.
    2. (b)
       The judicial member noted that the Ombudsman had submitted that the criminal charges preferred against the practitioner raised a reasonable belief that the suspension was necessary to maintain public confidence in the profession and not to discourage patients from seeking medical treatment. She identified that submission as raising a public interest ground, but did not go on to consider the public interest, noting the ruling she had made that s 58(1)(d) of the Act did not apply to the case before her.
    3. (c)
       The judicial member adverted specifically to the risks which counsel for the Ombudsman had identified in paragraph 3 of the written submissions, namely:

“(a)the [practitioner] will treat young female patients and sexually assault them thereby causing physical or psychological harm;

2. (b)
   the [practitioner] will treat a patient who is a victim of sexual assault and who later discovers that the [practitioner] is accused of sexually assaulting three patients and will consequently suffer some further psychological harm, shame or embarrassment;

3. (c)
   the [practitioner] will treat a patient who is a victim of sexual assault and because of attitudes held by him, provide inappropriate care or advice;

4. (d)
   members of the public – particularly victims of sexual assault – will be reluctant to attend any clinic where the [practitioner] practices; and

5. (e)
   members of the public will lose confidence in the medical profession and medical practitioners’ integrity, trustworthiness, and compassion.”

4. (d)
   I pause to interpolate that in oral submissions, counsel for the Ombudsman had conceded that the conditions (including disclosure conditions) could address risks (a), (b) and (c), but that conditions could not address risks (d) and (e) because they were matters which solely related to the public interest.
5. (e)
   The judicial member recorded that the practitioner’s submission was that upon review of the decision the correct and preferrable course was to make it a condition of his registration that restricted his opportunity to consult with male patients to telehealth consultations until such a condition was varied by order of the tribunal or agreement.
6. (f)
   The judicial member recorded the practitioner’s submissions that he had no criminal history; no prior disciplinary history; he denied the offences and the allegations had not yet been tested; he was under considerable financial distress being unemployed since the suspension; the proposed condition answered the risks; and, there was nothing to suggest that the practitioner would not comply with the condition which he had suggested.
7. (g)
   The judicial member expressed the view that there was a public interest in a proportionate response particularly where the charges were unlikely to finalize quickly and QCAT was not in a position to assess the strength of the case against the practitioner. She expressed the view that QCAT must keep in mind the presumption of innocence and that any immediate action should be the least onerous necessary to address the relevant risk.
8. (h)
   The judicial member concluded that the risks set out by the Ombudsman in paragraph 3 of the submissions would be ameliorated if not negated by the proposed condition. Although, for reasons already mentioned, she had not specifically dealt with the risks which had been identified as solely related to the public interest, she did state that she thought risk (d) was “unlikely in light of the proposed condition because [the practitioner] would not be consulting with any female patients in particular.”

20. [20]
    The appellant seeks to overturn the decision of QCAT, suggesting that two errors were made, namely:

    1. (a)
       The construction adopted of s 58(1) of the Act wrongly excluded consideration of taking immediate action against the practitioner’s registration in the public interests.
    2. (b)
       The judicial member had failed to consider two risks posed by the practitioner’s ongoing practice or the failure to give reasons or sufficient reasons if the judicial member did not consider the two risks.
21. [21]
    The second alleged error may be briefly dealt with. The two risks referred to and said not to be dealt with were risks (b) and (c) from paragraph 3 of the Ombudsman’s submissions before QCAT. It was wrong to suggest that the judicial member had not considered those risks. They were the subject of the concession that they could be addressed by conditions including disclosure conditions. The judicial member expressly stated that the proposed condition would ameliorate those risks. In light of the concession and the earlier remark that risk (d) was unlikely given a condition which had the result of excluding female patients, the judicial member obviously formed the evaluative judgment which she expressed after considering all the identified risks. In the circumstances, whilst the reasons would have been improved by further elaboration, the failure so to do does not amount to the error of law suggested by the appellant.
22. [22]
    I turn then to consider the first alleged error.
23. [23]
    In expressing the view that s 58(1)(d) did not apply, the judicial member excluded from her consideration an entire subject matter that would otherwise have had to be considered but for that decision; namely, whether it was “otherwise in the public interest” that the immediate registration action sought by the Ombudsman be taken. That exclusion was particularly significant given the fact that, as earlier remarked, the Ombudsman’s reasons for the original decision had made clear that it was only a consideration of the broader aspects of public interest arising under s 58(1)(d) which persuaded her to suspend rather than to impose conditions.
24. [24]
    In this Court, the practitioner’s argument in support of the conclusion reached by the judicial member was that:

“The use of the word otherwise in Section 58(1)(d) conveys the legislature’s intention that if one or more of the preceding subsections invoke immediate registration action, there is then no scope for Section 58(1)(d) to be invoked.

Section 58(1) should be interpreted to mean that, if the Health Ombudsman (or on review, the Tribunal) is satisfied that Section 58(1)(a), (b) or (c) applies, and immediate registration action is taken on the basis of one or more of those subsections, Section 58(1)(d) has no application because immediate registration action has otherwise been taken.

Section 58(1)(d) is reserved for those instances where a practitioner's conduct does not pose a risk to the health and safety of the public requiring immediate registration action, but where immediate registration action may be required to maintain public confidence in the profession.”

25. [25]
    The practitioner was unable to point to any reasoned analysis in any previous decision which supported the construction for which he contended.
26. [26]
    In my view the suggested construction of s 58 is misconceived.
27. [27]
    The evident contemplation of the legislature is that if circumstances arise which require the Ombudsman to consider the possible exercise of power under s 58, the Ombudsman will consider the circumstances and determine whether to exercise the power and, if so, how to do so.
28. [28]
    The structure of the section is to confer on the Ombudsman a specific type of power (namely the power to take immediate registration action) if the Ombudsman forms either a particular state of reasonable belief (namely that identified in ss 58(1)(a), (b), or (d)) or if a particular state of objective facts exists (namely that identified in s 58(1)(c)). The existence of one or more of the states of belief, or of the relevant objective facts, are jurisdictional facts on which the ability to exercise the power depends.
29. [29]
    Accordingly, the legislature obviously contemplated that if circumstances arise which require the Ombudsman to consider the possible exercise of power under s 58, the Ombudsman would first consider the circumstances and make a decision as to whether any of the jurisdictional facts existed. The practitioner’s argument before this Court accepted that proposition but sought to persuade the Court that one can discern in the Act an intention that the Ombudsman would consider whether the jurisdictional facts existed in a particular order, or pursuant to a particular contemplated hierarchy.
30. [30]
    The key to reaching this appreciation was said to be found in s 4 of the Act. It is convenient to set out ss 3 and 4 together:

“3Main Objects

3. (1)
   The main objects of this Act are—

1. (a)
   to protect the health and safety of the public; and

2. (b)
   to promote—

1. (i)
   professional, safe and competent practice by health practitioners; and

2. (ii)
   high standards of service delivery by health service organisations; and

3. (c)
   to maintain public confidence in the management of complaints and other matters relating to the provision of health services.

3. (2)
   The objects are to be achieved mainly by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services, including by—

1. (a)
   establishing the health ombudsman with the functions set out in section 25; and

2. (b)
   providing for the effective and efficient interaction of this Act and the National Law; and

3. (c)
   providing for the system to be effectively monitored by the Minister and the parliamentary committee.

4Paramount guiding principle

3. (1)
   The main principle for administering this Act is that the health and safety of the public are paramount.

3. (2)
   Without limiting subsection (1), the health and safety of the public is the main consideration for—

1. (a)
   the health ombudsman, when deciding what relevant action to take to deal with a complaint or other matter; and

2. (b)
   the director of proceedings, when deciding whether to refer a matter to QCAT; and

3. (c)
   QCAT, when deciding a matter referred to it under this Act.”

31. [31]
    There is no support in those sections for the practitioner’s argument. The contrary is the case. The power presently under consideration is but one part of a system established by the legislature which aims to be a system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services. The paramountcy of the consideration mentioned in s 4 does not deny the importance of the other objects. Yet on the practitioner’s argument the Ombudsman faced with the question whether to exercise power under s 58 would consider the possible justifications for that exercise by considering first the possible application of s 58(1)(a) and if satisfied that that justification existed, would not proceed any further. The view that the Ombudsman should only ever seek to determine one justification at any one time for the exercise of power under s 58 would run contrary to the recognition in s 3 of the Act of the importance of effective and expeditious procedure. And it would be to ignore at least one of the objects of the Act.
32. [32]
    In the present case (ss 58(1)(b) and (c) being irrelevant), the section empowered the Ombudsman to take immediate registration action if she formed the reasonable belief identified in s 58(1)(a) or if she formed the reasonable belief in s 58(1)(d). The existence of either such beliefs would then operate both to establish a jurisdictional fact necessary for the exercise of the power and the justification for the exercise of power, thereby identifying the matters which must be considered in determining whether or not to exercise the power, and how to exercise it.
33. [33]
    There is simply no reason to think that the legislature contemplated that the Ombudsman might not hold both beliefs at the same time, or that she could only hold the second type of belief if she had first considered and rejected the first type of belief. The legislature must be taken to have contemplated the possibility that if the Ombudsman considered the circumstances with a view to determining whether to exercise the power and, if so, how to do so, the Ombudsman might determine –

    1. (a)
       she held neither belief;
    2. (b)
       she held one only of the two beliefs; or
    3. (c)
       she held both beliefs.
34. [34]
    In the first case, she would not exercise the power. In the second and third cases, the beliefs held would found the justification (or justifications) for the exercise of power, and would identify the matters which must be considered in determining whether or not to exercise the power, and how to exercise it. The consequence of holding both types of belief would simply be that she would have two justifications for the exercise of power under s 58. There is no warrant in the text of the section for concluding that there could only ever be one justification for the exercise of power at any one time. Nor is there any warrant in the text of the section for concluding that the Ombudsman had to address the possible justifications in any particular order. Effective and efficient dealing with complaints would require the consideration of such possible justifications for exercise of power as were fairly raised by the material before the Ombudsman.
35. [35]
    The intention of the word “otherwise” in s 58(1)(d) is no more than a recognition that the three other possible foundations of jurisdiction mentioned in ss 58(1)(a), (b) and (c) may be regarded as matters of public interest, and there might be other reasons in the public interest for the exercise of power. This was recognised in Health Ombudsman v Harirchian [2021] QCA 141 at [10]:

“The action which the Health Ombudsman took in relation to the respondent was to suspend his registration pursuant to s 58(1)(d). The discretion arises if the Health Ombudsman “reasonably believes” that asuspension “is otherwise in the public interest”. The word “otherwise” signifies that the Health Ombudsman reasonably believes that the action is required in the public interest for reasons other than those specified in s 58(1)(a), (b) and (c). Apart from subsections 58(1)(b) and (c), which relate to issues to do with the status of the registration itself, s 58(1)(d) contemplates that it may be in the public interest to suspend a practitioner’s registration notwithstanding that he or she does not pose “a serious risk to persons” and although there is no need to take action to “protect public health or safety”. The paradigm example is contained in the note to that subsection which is quoted above. It follows that it is a fortiori that it may be appropriate to suspend registration in order to maintain public confidence in the provision of health services if a health practitioner has actually been convicted of a serious criminal offence.”

36. [36]
    On the review of the Ombudsman’s decision the judicial member was to conduct a fresh hearing on the merits so as to arrive at the correct and preferable decision on the question whether to exercise the power under s 58 and, if so, how. In the present case, the material before the tribunal fairly raised the possible application of both s 58(1)(a) and s 58(1)(d). In such circumstances, s 58(1)(d) could only be found not to apply if, having considered the matter herself with the assistance of the assessors, she formed the view that she did not reasonably have that belief. But that is not the way in which she came to the conclusion that s 58(1)(d) did not apply. She did so on the basis of an erroneous construction of the section. As earlier remarked, the result of the misconstruction of s 58 was to exclude from consideration whether there was an adequate basis for the more general public interest including the public interest in maintaining confidence in the provision of services by health practitioners to justify immediate suspension as opposed to imposition of a condition on registration.
37. [37]
    The tribunal should have considered both whether it reasonably formed the belief that immediate registration action was required under s 58(1)(a) and whether it was required because it was otherwise in the public interest for reasons other than those specified in s 58(1)(a) and, having regard to whatever was its conclusion on those questions, arrived at the correct and preferable decision.
38. [38]
    In written submissions before this Court it initially appeared that, if this Court was persuaded that the tribunal had proceeded on an erroneous construction of s 58, the parties joined in inviting the Court to substitute its own decision for that of the tribunal. But the effect of the error was to deny this Court the benefit of the views on the broad question of the public interest of the judicial member as assisted by a panel of the nature required under the Act. In argument before this Court, both the Ombudsman and the practitioner accepted that if this Court was persuaded of error, the better course would be to remit the matter back to QCAT for reconsideration. The present decision by QCAT imposing conditions on the practitioner’s registration could stand until QCAT is able to reconsider the matter.
39. [39]
    Senior counsel for the practitioner accepted that costs of the appeal should follow the event, but sought an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973. In light of the fact that the appeal turned on the question of law identified in the body of these reasons, it is appropriate that such a certificate be granted.
40. [40]
    For the foregoing reasons, I joined in the making of the orders made on 24 March 2023.
41. [41]
    GOTTERSON AJA: I agree with the reasons of Bond JA for the orders made on 24 March 2023.