Health Ombudsman v Lozano[2021] QCAT 87

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral of a matter against Juan Manuel Lozano (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant seeks that the Tribunal makes disciplinary orders against the respondent pursuant to section 107(2)(b) of the HO Act.
2. [2]
   The parties are agreed as to the facts constituting the conduct the subject of the referral and that such conduct should be characterised as professional misconduct. The parties also agree that any orders for sanction should include a reprimand of the respondent and an order, pursuant to section 107(4)(a) of the HO Act, disqualifying the respondent from applying for registration as a registered health practitioner for a specified period. The only dispute between the parties is to the length of such specified period with the respondent contending that a period in the order of three months is appropriate and the applicant contending for a period in the order of 12 months.
3. [3]
   The respondent is 34 years of age and was aged 31 at the time he engaged in the conduct the subject of the referral. The respondent holds a Diploma of Nursing and was first registered as an enrolled nurse on 20 July 2012. At all relevant times the respondent was employed as an enrolled nurse at the Park Centre for Mental Health.
4. [4]
   The admitted conduct the subject of the referral is the respondent’s conviction for criminal offences of violence on three occasions during 2017 and 2018.
5. [5]
   Allegation 1 relates to a conviction for an offence committed on 26 March 2017. On that date, the respondent attended an address to speak to his former girlfriend. The former girlfriend’s uncle asked the respondent to leave the address. The respondent felt threatened by the former girlfriend’s uncle (Victim 1), who was holding a breaker bar, and disarmed Victim 1 by removing the breaker bar from the victim’s hands.
6. [6]
   A fight broke out between the respondent and Victim 1 in the front yard of the address and punches were exchanged between them. It is not known who threw the first punch. Whilst Victim 1 was on the ground, the respondent struck Victim 1 once with the breaker bar on his left forearm, fracturing his forearm and causing a laceration. Medical evidence which was placed before the Magistrates Court on the respondent’s sentence indicated that the victim had suffered a six to eight centimetre laceration to his forearm and a fracture of his left ulna bone in his arm. The fracture required medical treatment by way of a backslab.
7. [7]
   The respondent was later arrested and charged with assault occasioning bodily harm whilst armed. On 17 October 2017 in the Richland Magistrates Court, the respondent was convicted, on his own plea of guilty, of one count of assault occasioning bodily harm whilst armed, being a domestic violence offence. The respondent was sentenced to imprisonment for a period of nine months, suspended for an operational period of three years. A conviction was recorded and the respondent was ordered to pay $1,000 compensation to Victim 1.
8. [8]
   Allegation 2 relates to offences committed by, the respondent on 14 July 2017. At that time he was on bail in relation to the charge of the offence the subject of Allegation 1. Late in the night of 14 July 2017 the respondent was denied entry to the Victory Hotel in Brisbane City because he did not hold current identification. The respondent became hostile towards the security officer who had denied him entry and head-butted him in the face. The respondent was arrested by police and during the search nine tablets were located in his jeans’ pocket. The respondent identified the tablets as MDMA. The respondent was charged with assault occasioning bodily harm and possessing dangerous drugs.
9. [9]
   On 7 June 2018 in the Magistrates Court at Brisbane, the respondent was convicted, on his own plea of guilty, of one count of assault occasioning bodily harm and one count of possessing a schedule 1 drug. A conviction was recorded. He was fined $2,000 and ordered to pay $800 to the victim of the assault offence.
10. [10]
    Allegation 3 relates to the commission of an offence on 1 July 2018 in the early morning of that day. Victim 3 was in the Fortitude Valley night club precinct on Brunswick Street when he saw the respondent having a heated argument with a woman. Victim 3 saw the respondent putting his face up close to the woman, who was crying, before knocking a bottle of water out of her hand. Victim 3 walked over to the respondent and to the woman. Victim 3 said, “Are you all right?” It appears Victim 3 told the police that that question was directed towards the woman, although the respondent has given evidence before the Tribunal that he believed that the question was directed towards himself in a sarcastic manner. The respondent turned to Victim 3, confronted him, put his face next to that of Victim 3, and pushed him once in the chest before grabbing Victim 3 by the shirt and headbutting him across the bridge of his nose, causing it to break and bleed.
11. [11]
    During the later sentence proceedings before the Magistrates Court at Brisbane, the court was supplied with a victim impact statement from Victim 3, which indicated that the victim had suffered a badly broken nose, requiring surgery to straighten it, and had suffered financial loss as a result of inability to work and play rugby union. Victim 3 reported continued difficulty in breathing because of a deviated septum which would require further surgery. He also reported significant psychological symptoms and continuing loss of confidence in public. He stated that continued ruminations upon the assault had affected his concentration at work and study and affected his academic results.
12. [12]
    Such offence was committed during the operational period of the suspended sentence that had been imposed at the Magistrates Court, Brisbane on 7 June 2018, indeed within one month of the imposition of that suspended sentence. On 27 November 2018 the respondent was convicted, on his own plea of guilty, in the Magistrates Court at Brisbane, of one offence of assault occasioning bodily harm. For that offence he was sentenced to six months imprisonment with a parole release date of 26 February 2019. He was ordered to pay restitution and compensation to the victim. The suspended sentence of nine months’ imprisonment imposed on 17 October 2017 was fully invoked with that sentence running concurrently with the sentence imposed for the 1 July 2018 offence.
13. [13]
    Both parties agree that such conduct should be characterised as professional misconduct and the Tribunal has no hesitation in accepting such submissions. The conduct fell well below the standard of conduct expected of members of the nursing profession in their personal life and obviously had the real potential to affect public confidence in the members of the nursing profession. The conduct is such as to meet each limb of the definition of professional misconduct in section 5 of the Health Practitioner Regulation National Law (Queensland). 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.
14. [14]
    When determining appropriate orders by way of sanction the main consideration for the Tribunal is the health and safety of the public.^[1] Disciplinary proceedings are protective not punitive in nature. Relevant considerations include both personal and general deterrence where such consideration served to meet such protective purpose, the maintenance of professional standards and the maintenance of public confidence.
15. [15]
    The misconduct in this case is serious, particularly because of the severity of injury suffered by Victims 1 and 3, and because of the repetitive nature of the misconduct. It was disgraceful conduct which requires denunciation by the Tribunal. Indeed, both parties agree that any orders for sanction should include a reprimand of the respondent. Pursuant to section 107(3)(a), the respondent is reprimanded.
16. [16]
    In addition to the seriousness of the misconduct, there are other factors relevant to the length of any further preclusion from practice to be ordered by the Tribunal.
17. [17]
    The respondent has no prior disciplinary history. Prior to the offences the subject of this referral, he had a very limited criminal history, having been dealt with for an offence of wilful damage in 2009 by a fine without the recording of a conviction. Following his release on parole on 26 February 2019, the respondent completed his period of parole without incident. He has not reoffended since 2018.
18. [18]
    On 10 July 2018, the respondent’s employer suspended the respondent from duty on full pay. On 30 November 2018, the respondent’s employer terminated his employment. On 6 December 2018, the Nursing and Midwifery Board of Australia decided to impose conditions on the respondent’s registration for a period of 12 months, requiring drug testing, attending a treating general practitioner and psychologist and practising in an approved position.
19. [19]
    On 22 March 2019, the respondent surrendered his registration. The respondent has deposed that he did so to take time away from nursing and focus on his rehabilitation. He has subsequently been employed as a furniture deliverer with a significant consequent reduction in his income, meaning that he has struggled to meet his financial commitments.
20. [20]
    Both parties have submitted that the period of about two years three months, during which the respondent has not practised as a nurse, should be regarded as a relevant period in determining any further period of preclusion from practice by way of sanction.
21. [21]
    The respondent has deposed that he is deeply remorseful for his conduct, that he feels ashamed of his behaviour and of letting himself down personally and professionally, and also letting the nursing profession down. He did voluntarily undertake education towards his rehabilitation, which he details in an affidavit filed in the Tribunal. He deposes that he understands that, as a result of engaging in such conduct, he has risked and damaged his personal and professional reputation, as well as the reputation of the nursing profession. He deposes that he understands that nurses are held to a higher standard in respect of their professional and personal conduct, and that causing harm to another person is completely inconsistent with the obligations of nursing professionals who are expected to help people, and who the public reasonably expects to be people that they can trust not to hurt them.
22. [22]
    The Tribunal accepts that the respondent is remorseful for his conduct and has developed insight into the wrongness of his conduct. No doubt the consequences suffered by the respondent by way of loss of employment and his imprisonment have had a salutatory effect upon him and any likelihood of him engaging in similar conduct in the future. A preclusion from practice is not required to address any immediate protective purpose, but is required so as to maintain professional standards and public confidence in the profession, and therefore meet the protective purposes of sanction.
23. [23]
    The respondent submitted that underlying and untreated mental health conditions, namely depression and anxiety, contributed to the respondent’s significant loss of temper on the occasions of his offending, and that this should be regarded as a mitigating factor in considering sanction, in light of the respondent having subsequently sought medical treatment for such underlying mental health disorders. The Tribunal does not accept such submission. Firstly, there is no evidence upon which the Tribunal could be satisfied that any such mental disorder in fact contributed to the respondent’s offending. Secondly, any mental health condition of depression had been diagnosed and treated prior to the time of the offending.
24. [24]
    I should also note in favour of the respondent that he did plead guilty to the offences with which he was charged in the Magistrates Courts, albeit in relation to Allegation 1, at a time regarded by the sentencing magistrate as late. He has also cooperated in the conduct of proceedings before this Tribunal with full admissions as to the conduct alleged against him and his admission that such conduct should be characterised as professional misconduct.
25. [25]
    The parties have referred to a number of decisions of this and other Tribunals. There are always differences between particular cases and none of the comparable decisions referred to in any way set a range for an appropriate sanction in this matter. The most comparble and helpful is the recent decision of Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 318 (Sellen). The enrolled nurse in that matter committed offences of entering a dwelling with intent, common assault and unlawfully doing grievous bodily harm. As in the case of the respondent, such offences were committed quite outside the practitioner’s nursing practice. The practitioner in Sellen followed an acquaintance into her home, assaulting her causing her to fall heavily to the floor and suffer a fractured hip. It was a serious injury requiring surgery and serious physical and psychological consequences.
26. [26]
    The offence of doing grievous bodily harm is of course a more serious offence, according to our criminal law, than an offence of assault occasioning bodily harm, even with circumstances of aggravation. That is the distinguishing factor in favour of the respondent. However, the offending in Sellen was on one occasion only, whereas the respondent’s is repeated. In that case the orders of the Tribunal effectively resulted in a total period of preclusion from practice of the practitioner of a little over five years.
27. [27]
    Insofar as the decision is of assistance as a yardstick in assisting determination of sanction in this matter, it supports the submission on behalf of the applicant that a period of further preclusion from practice of 12 months, which would result in the respondent being effectively precluded from practice for a total period of about three years, three months, is an appropriate one. The Tribunal finds that no lesser period of preclusion would meet the protective purposes of sanction. Pursuant to section 107(4)(a) of the HO Act, the Tribunal disqualifies the respondent from applying for registration as a registered health practitioner for a period of 12 months.
28. [28]
    Both parties have submitted that each party should bear their own costs. There being no reason why the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should not apply, the orders of the Tribunal will reflect that position.