Health Ombudsman v Holden[2021] QCAT 196

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

APPEARANCES &

REPRESENTATION:

Applicant:  N Townsend of the Office of the Health Ombudsman

Respondent:  No appearance

REASONS FOR DECISION

Introduction

1. [1]
   The Director of Proceedings on behalf of the Health Ombudsman (applicant) has referred a health service complaint against Natalie Louise Holden (respondent) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). At all relevant times, the respondent was an unregistered health practitioner. The applicant seeks that the Tribunal decide, pursuant to section 113(1) of the HO Act,^[1] that because of the respondent’s conduct, she presents a serious risk to persons and that the Tribunal make a prohibition order pursuant to section 113(4) of the HO Act.

The applicant and her conduct

2. [2]
   The respondent is aged 43 years and was aged 40 at the time of the conduct the subject of the referral.
3. [3]
   The respondent completed a Certificate 3 in Aged Care.
4. [4]
   Prior to the conduct the subject of the referral, the respondent had a criminal history for ten offences of dishonesty committed in 2015 and 2016.
5. [5]
   The conduct the subject of the referral occurred in 2018 when the respondent was employed as an assistant in nursing at a nursing home.
6. [6]
   On 9 March 2018, the respondent stole a resident’s credit card from the resident’s wallet which was kept in a drawer of the nurses station of the nursing home.
7. [7]
   On 10 March 2018, the respondent used the stolen credit card to purchase cigarettes costing $29.62. The respondent unsuccessfully attempted to use the card to withdraw $200 from an ATM. The respondent then used the card to purchase alcohol costing $63.
8. [8]
   On 25 March 2018, the respondent was charged with criminal offences relating to her theft and use of the credit card.
9. [9]
   On 26 March 2018, the respondent’s employment with the nursing home was terminated.
10. [10]
    On 5 December 2018, the respondent appeared in the Magistrates Court at Southport and pleaded guilty to one count of stealing and two counts of fraud and was sentenced to four months’ imprisonment, wholly suspended, for an operational period of two years.

Immediate registration action

11. [11]
    On 15 May 2018, the applicant decided to impose an interim prohibition order on the respondent pursuant to section 68 of the HO Act, prohibiting the respondent from providing any health services.
12. [12]
    It will be necessary for the decision to issue the interim prohibition order to be set aside pursuant to 73(2)(a)(ii) of the HO Act.^[2]

Tribunal proceedings

13. [13]
    In the referral filed on 28 May 2019, the applicant particularised the respondent’s conduct as described earlier and sought a prohibition order pursuant to section 113 of the HO Act.
14. [14]
    The respondent has chosen not to engage in the proceedings, not filing a response or any other material and not appearing in person or remotely at the hearing of the matter.

Legislation

15. [15]
    In her employment as an assistant in nursing, the respondent provided a “health service” within the meaning of section 7 of the HO Act and was thus a “health service provider” as defined in section 8(a)(ii) of the HO Act. The respondent was not a registered health practitioner and thus the applicable powers of the Tribunal are to be found in the repealed Part 10, Division 4 of the HO Act; in particular, section 113.
16. [16]
    Section 113(1) of the HO Act provides as follows:

QCAT must decide if, because of the health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons.

17. [17]
    Section 113(2) of the HO Act provides a non-exhaustive list of the types of conduct which may constitute a serious risk, including “financially exploiting the person”.
18. [18]
    Section 113(4) provides as follows:

If QCAT decides the practitioner poses a serious risk to persons, it may make an order (a prohibition order)­−

1. (a)
   prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service; or
2. (b)
   imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner.

A serious risk?

19. [19]
    The term “serious risk” is not statutorily defined. It takes its ordinary meaning in its statutory context. The word “serious” is defined in the Macquarie Dictionary as:

of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.

20. [20]
    It is helpful to consider the following:

    1. (a)
       the nature of the risk;
    2. (b)
       the likelihood of it eventuating; and
    3. (c)
       the seriousness of the consequences if the risk eventuates.
21. [21]
    The nature of the risk is that the respondent, in providing care to a vulnerable person, might exploit her position of trust as a carer to the detriment of the person.
22. [22]
    It is difficult to assess the likelihood of that occurring if the respondent was to return to providing health care to vulnerable persons. The respondent has not placed any material before the Tribunal that might provide context to her offending or evidence of rehabilitation that might support a finding of decreased risk. Her theft of the credit card from a vulnerable resident was a deliberate breach of her duty of care to the resident and a gross breach of trust of the resident and her employer. The conduct and the respondent’s criminal history demonstrate a persistent propensity towards dishonesty. That fundamental character flaw is incompatible with the character required of a health care worker. I regard the defects of character revealed by the respondent’s past behaviour so significant as to establish a continuing risk.
23. [23]
    Conduct such as that the subject of the referral not only hurts vulnerable persons financially but has the potential to seriously affect such a person’s confidence and feelings of personal security. The seriousness of the consequences to another person if the risk eventuated weigh in favour of the finding of a serious risk.
24. [24]
    In all the circumstances, the Tribunal decides that, because of her conduct, the respondent poses a serious risk to persons.

A prohibition order? 

25. [25]
    In these circumstances, the Tribunal should exercise the discretion to make a prohibition order pursuant to section 113(4) of the HO Act.

There is no basis for finding that the risk presented by the respondent will have reduced to an acceptable level after the passage of a period of time. Accordingly, any prohibition should be permanent. There is no basis for concluding that imposition of restrictions pursuant to section 113(4)(b) would properly address such risk. I have considered whether the respondent should be prohibited from providing a stated health service or services: for example, aged care services. That would not protect all vulnerable patients potentially at risk. In all the circumstances, I have concluded that a permanent prohibition on provision of any health service is appropriate.

General deterrence and public interest considerations

26. [26]
    Given my conclusion that the respondent herself presents a serious risk requiring a prohibition order, I have not found it necessary to rule on the applicant’s submissions that considerations of general deterrence, that is, the deterrence of other unregistered practitioners, and public interest considerations, that is, maintaining public confidence in the profession, supported the making of a prohibition order. Given that the matter was heard without submissions from a contradictor, this is not an appropriate case to decide whether such considerations are relevant to section 113 of the HO Act.

Costs

27. [27]
    The applicant did not seek costs and the orders of the Tribunal will confirm that the default position as to costs pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies.