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Health Ombudsman v Powell[2022] QCAT 112

Health Ombudsman v Powell[2022] QCAT 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Powell [2022] QCAT 112

PARTIES:

director of proceedings on behalf of the Health Ombudsman

(applicant)

v

Jodie Maree powell

(respondent)

APPLICATION NO/S:

OCR110-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 April 2022

HEARING DATE:

8 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Mr Peter Davies

Ms Laura Dyer

Mr Stephen Lewis

ORDERS:

  1. The respondent is found to have behaved in a manner that constitutes professional misconduct.
  2. The respondent is reprimanded.
  3. The respondent’s registration as a nurse is cancelled.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act, the respondent is disqualified for reapplying for registration as a nurse until 13 December 2027.
  5. Each party is to bear their own costs of the proceedings.
  6. The application for a non-publication order is refused save insofar as it involves the names of the deceased and female foster child.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent nurse pleaded guilty in the Queensland Supreme Court to one count of manslaughter and two counts of assault occasioning bodily harm whilst armed in company – where the conduct was committed against her foster child and not in her professional capacity as a nurse – where the respondent was sentenced to nine years imprisonment for the manslaughter charge – where parties are in agreement regarding factual matters and characterisation of the conduct – whether the respondents registration should be cancelled or suspended and for how long the period of cancellation or suspension should be

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent submitted for a non-publication order for the respondent, her foster children and her partner – where the applicant opposes the order – where the responded has significant mental health concerns – whether a non publication order should be made

Health Ombudsman Act 2013 (Qld) s 107

ABC v D1 and Ors; ex parte the Hearld and Weekly Times Ltd [2007] VSC 480

Health Ombudsman v CSM [2020] QCAT 55

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v Le [2020] QCAT 170

McBride v Walton [1994] NSWCA 199

Medical Board of Australia v Jansz [2011] VCAT 1026

APPEARANCES &

REPRESENTATION:

 

Applicant:

D Dupree, Principal Legal Officer at the Office of the Health Ombudsman

Respondent:

JR Jones and GE Deveraux, instructed by Gilshenan and Luton Lawyers

REASONS FOR DECISION

  1. [1]
    This proceeding is concerned with an application by the Director on behalf of the Health Ombudsman (applicant). The applicant seeks various orders concerning Jodie Maree Powell (respondent). The relief sought by the applicant initially, was as follows:
    1. (a)
      Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decide that the respondent had behaved in a way that constitutes professional misconduct.
    2. (b)
      Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent be reprimanded.
    3. (c)
      Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration as a nurse be cancelled.
    4. (d)
      Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent be disqualified for reapplying from registration as a nurse for a period of 8 – 10 years.
    5. (e)
      Each party is to bear their own costs of the proceedings.
  2. [2]
    However, Mr Dupree, who appeared for the applicant upon the hearing of this matter, advised the Tribunal that the applicant now seeks disqualification from reapplying for registration as a nurse for 5-7 years. The respondent on the other hand contended for the following orders:
    1. (a)
      The respondent should be found to have been engaged in professional misconduct.
    2. (b)
      The respondent should be reprimanded.
    3. (c)
      The respondent’s registration be suspended until 23 December 2027.
    4. (d)
      Conditions relevant to education and that ensure competency would attach to her registration.
    5. (e)
      Each party should bear their own costs of the proceedings.
  3. [3]
    For the reasons given below, the orders of the Tribunal are:
  1. The respondent is found to have behaved in a manner that constitutes professional misconduct.
  2. The respondent is reprimanded.
  3. The respondent’s registration as a nurse is cancelled.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified for reapplying for registration as a nurse until 13 December 2027.
  5. Each party is to bear their own costs of the proceedings.
  6. The application for a non-publication order is refused save insofar as it involves the names of the deceased and female foster child.

Background

  1. [4]
    On 21 December 2016, the applicant received notification from the Queensland Police Service that the respondent had been charged with a number of serious criminal offences involving her male foster child. On 22 December 2016, the applicant decided to commence an investigation and, on 23 December 2016 the respondent’s registration as a nurse was suspended.
  2. [5]
    On 21 August 2019, the respondent was convicted on her own plea of guilty and was sentenced by Burns J in the Supreme Court of Queensland. On that date, the respondent was sentenced to nine years imprisonment, in respect of the charge of manslaughter and 12 months and nine months imprisonment in respect of two counts of assault occasioning bodily harm whilst armed and in company against the same child. His Honour also ordered that the respondent be eligible for parole after serving three and a half years imprisonment. Having regard to time already served in imprisonment, the respondent was eligible for parole from 14 June 2020.
  3. [6]
    The respondent’s criminal culpability for the young boy’s death arose from her omission to perform her duties as his carer, in particular, her failure to obtain medical treatment for his developing health condition, later ascertained to be bronchopneumonia. His Honour summarised the circumstances of that offending as follows:

On the morning of 19 July, the family had planned to attend a festival at South Bank. At one point you gave the children sandwiches to eat. (The child) was slow eating his, so you took him to his bedroom where he was required to finish eating his sandwiches. He was sitting on the floor, trying to swallow them. I accept that your attention was then drawn to him by something you heard, it was (the child) choking on a sandwich.

You went into the bedroom and tried to remove the obstruction from his mouth. His mouth was bleeding. Either whilst you were in the process of doing that or shortly thereafter (the child) lost consciousness. He then stopped breathing. You made some attempt to revive him. It is not clear precisely what you did, but I assume, in your favour, that you pressed into service your medical training to do what you thought was required. You realised fairly quickly that attempts to resuscitate him would be futile. (The child) had died. After that occurred, efforts were made to “clean the scene”, to use the expression set out in the statement of facts. You removed his shirt and cleaned the blood off him. You made a number of irrational statements to (the respondent’s partner) about going to get rid of (the child) body and not coming back; a reference to a plan on your part to commit suicide. You then told (your partner) to go to South Bank with the children followed by another irrational statement that you were going to take (the child’s) body somewhere and not come back, but either after they left, or as they were leaving, you put (the child’s) body in the bed, under the blankets and you told (another foster child) to act surprised and that you would go to jail if anyone figured out you were in the same room as (the child) when he died….

  1. [7]
    When the other family members left to go to South Bank the respondent attempted to commit suicide and during transportation to the hospital by the ambulance, she repeatedly told ambulance officers to just let her die.
  2. [8]
    The failure by the respondent to seek medical treatment for the child was characterised by Burns J as follows:

The compelling inference, and the one that I accept, is that you chose not to seek medical treatment for him because you knew that would expose you at least to the real possibility of having to explain the presence of so many bruises on his body. In that sense, it is a serious aggravating feature, this matter in my view, that you chose to put your own interests ahead of your foster child. I accept though that your decision not to seek medical attention may not have been clear cut as that. That was certainly part of it. (emphasis added)

  1. [9]
    In respect of the injuries to the child resulting from the two counts of assault occasioning bodily harm, one episode involved the respondent throwing a knife at the child causing a cut to one of his legs. The other charge of assault occasioning bodily harm whilst armed involved the respondent striking the child with a carving fork, leaving him with bruising on his upper back, lower back and thigh. The respondent was also found to have inflicted what was described as excessive discipline. This included banging the child’s head on a wall and hitting him with various implements including electricity power cords, a wooden spoon and belt. The respondent accepted that this excessive discipline was inflicted sometimes for irrational reasons. Some of the injuries resulted in the child being kept home from school, when the injuries could not be otherwise disguised.
  2. [10]
    It would appear, by reference to the unchallenged victim impact statement of the female foster child of the respondent, that she was also subjected to excessive discipline, including being struck by a wooden spoon and leather belt.
  3. [11]
    After accepting that the respondent was deeply remorseful for her offending, a matter this Tribunal so accepts, His Honour then went on to deal with the mental health of the respondent at the time of the offending. His Honour said:

It is important also, to an understanding of this sentence to accept, as I do, that at the time of these offences, you suffered from and have, for many years suffered from major depression, and, possibly, a post-traumatic stress disorder, both of which conditions had a real impact on you. You come from a dysfunctional family. You’ve been subjected to one trauma after another, both as a child and a teenager, and that pattern seems to have continued in your adult life. It is a remarkable feature of this matter that you never received any treatment for any of those conditions until you were apprehended with respect to these offences. You have received treatment from the prison mental health services since that time, but it is treatment of an acute nature. Clearly on your release from custody, you will require ongoing and intensive treatment. Again, none of that excuses your failings with respect to (the child), but it does reduce your culpability somewhat, and makes you a less suitable vehicle for general deterrence than would otherwise be the case. (emphasis added)

  1. [12]
    Returning to the respondent’s failure to seek medical treatment for the child, His Honour said:

Perhaps the best explanation appears in Mr Jones’ report in paragraph 5.222(d). In part of the history you gave him, you mentioned a sense of panic, a fear of the children being removed from your care and an immediate fear of prosecution for the neglect of the children. I accept it is likely that those thoughts were running around in your head at the time, and I also accept the submissions made by Mr Ryan on your behalf as to the other factors that were present in your life at that time, I am referring to paragraph 45 of Mr Ryan's submissions. Your life was, at that time, in turmoil, and you were suffering from a number of different pressures. None of that excuses your failure to arrange medical treatment, but it goes some part of the way towards explaining why you failed to act when you, of all people, must have known that you should have.

  1. [13]
    The report referred to by His Honour was that prepared by A Jones, a consultant forensic psychologist. Mr Jones’ report, which was prepared on 28 July 2019, addressed a number of disturbing aspects of the respondent’s childhood and adult life. These include:
    1. (a)
      a dysfunctional childhood involving a number of episodes of serious domestic violence;
    2. (b)
      the respondent’s mother becoming addicted to various forms of medication as a consequence of suffering severe mental illness;
    3. (c)
      the respondent’s mother committing suicide by a drug overdose when she was 13 years of age;
    4. (d)
      being placed under care as foster children on 4 separate occasions between 1983 and 1985;
    5. (e)
      being sexually assaulted as a young child; and
    6. (f)
      more physical abuse whilst in foster care, following her mother’s death.
  2. [14]
    Mr Jones, unsurprisingly, recorded that this background indicated that the respondent had suffered a number of chronic traumatic and stressful events which persisted throughout her infancy and into her adult years. This included the fact that her relationship with her partner at the time of the child’s death, also involved frequent episodes of domestic violence. On one such occasion, the violence was so severe as to require her to be hospitalised and operated upon to insert a cervical intervertebral cage in 2008.
  3. [15]
    In addition to referring to the respondent’s alcohol abuse at the time, Mr Jones went on to deal with a number of matters under the heading “Principal Condition”. Mr Jones observed:

The findings regarding (the respondent’s) state of mental health is consistent with a condition of Major Depressive Disorder, Single Episode, Severe with Anxious Distress…. She presents within the 88th percentile band for the standard population with consistent coefficients of fit with known clinical groups….

The term “single episode” indicates that (the respondent’s) condition has been chronically present for many years prior to (the child’s) death. In that period, she has not had respite from that condition for a reasonable time which is considered to be at least two months during which no symptoms are present.

Her antecedents support this indicated condition, given the chronic nature of her exposure to repeated traumas.

  1. [16]
    Under the heading “Comorbid Disorders”, Mr Jones went on to report:

(The respondent’s) evident anxiety during the interview is clearly present in the results of the PAI and is reflected in her antecedents as suffering a pervasive Generalized Anxiety Disorder….

Her antecedents and the PAI results are consistent with and directly related to her registration for (complex) Post Traumatic Stress Disorder….

  1. [17]
    Under the heading “Conclusions and Recommendations”, Mr Jones reported as follows:

None of the details presented in this report are able to be presented as a mitigation of the seriousness of the neglect that (the respondent) demonstrated over the suggested period of at least months prior to (the child’s) death.

She has not attempted to minimize her responsibilities in any way, nor to excuse her use of alcohol as a means of managing her chronic depression. She has accepted full responsibility and expressed marked regret at the harm caused.

Her subsequent state of mental health must be considered fragile to the point of disintegration and whilst the community is not reasonably considered to be at risk (the respondent) is certainly at risk due to the marked state of her suicidal ideation.

She noted in interview that mental health staff have advised her that they are unable to assist with the development of a suitable futures plan prior to her release due to the dynamic nature of her condition and the need for planned, ongoing professional support in the long-term.

It is recommended that (the respondent) be released to a community-based program that provides her with immediate and frequent access to the requisite health professionals able to assist her with her mental health and other rehabilitative necessities.

Given the circumstances of offending any release program will necessarily require ongoing frequent supervision such as parole. (emphasis added)

  1. [18]
    In sentencing the respondent, Burns J observed that but for the “range of psychology issues” suffered by the respondent, a head sentence of 10 years or more would have been appropriate in respect of the charge of manslaughter. However, having regard to those matters and the respondent’s deep remorse, His Honour concluded that a head sentence of nine years was appropriate.

Consideration and discussion

  1. [19]
    In the written submissions filed on behalf of the respondent, it was asserted that:

The question then is whether a period longer than nine years out of practice would promote the maintenance of professional standards and public confidence.

(the respondent’s) conduct was an aberration of the most serious kind. However, it was influenced by external pressures. There was no risk to patients.

  1. [20]
    While the conduct immediately leading up to the death of the child might be fairly described as being aberrant, that conduct has to be seen against the background of the respondent’s historical mistreatment of that child. As to the question of risk to the public and in particular, patients in the future, the assertions made on behalf of the respondent seem to be somewhat at odds with the observations of Mr Jones, where he reports as follows:

An estimate of risk takes these matters into consideration, including (the respondent’s) own acknowledgement of her significant neglect of duty of care due to the chronic decline of her mental health over many years.

It is most unlikely that (the respondent) will ever again be exposed to similar circumstances where she will be responsible for the immediate care of persons with severe health risks, either children or adults.

She has no immediate future in health care, regardless of her extensive experience and will be required to work in employment completely separate from her areas of expertise.

Consequently, it must be considered that her level of risk of similar reoffending or providing some other heightened risk to the community is very low. (emphasis added)

  1. [21]
    That said, the applicant has asked the Tribunal to proceed on the basis that upon having her mental health issues adequately addressed, the respondent would not pose a risk to either the public at large or to patients in the future. In this context it is of significance that the offending by the respondent, as ghastly as it is, did not involve the mistreatment of patients while the respondent was acting in her professional capacity. 
  2. [22]
    The references provided on behalf of the respondent make it abundantly clear that she was a hardworking, conscientious and highly regarded nurse. That said though, her conduct leading up to her being sentenced in respect of the charges of manslaughter and assault occasioning bodily harm, as Burns J observed, involved a breach of duty as “gross as it is stark”. To adopt the terminology of Allen QC DCJ in Health Ombudsman v DKM,[1] the conduct of the respondent was completely inconsistent with the expectations and obligations of the nursing profession.
  3. [23]
    The respondent’s return to the nursing profession is clearly dependent upon her ongoing treatment. In a more recent report dated 4 June 2021, Dr Mansour, a psychiatry consultant, said:

My provisional impression is that she seems to present with an Adjustment disorder with mixed anxiety and depression. A possible bipolar affective disorder type II. On a background of difficult upbringing and exposure to trauma and a history of binge alcohol drinking currently abstinent. Nevertheless, she has developed good resilience and grew up to be a protectionist with an obsessive personality trait. She completed school, and post graduate studies and has had a stable employment up until the incident. With subsequent visits, she seemed to be managing her life very well. She was able to find alternative accommodation and organise her mortgage. Her mental state remained stable and was more reactive. She also showed good adherence to medications. Consequently, I would support her in applying for registration sooner than 10 years as I imagine this is one of the major stresses in her life and that getting into the routine of work would help alleviate stress and allow her reintegration into society, give her a sense of purpose and achievement considering her nature as a workaholic and a perfectionist. I would speculate that she would be able to return to work after getting registered provided that she stays on her prescribed medication and stays abstinent from any destabilising factors such as alcohol drinking which she has already demonstrated. I would also recommend that she gets a graduated return to work which helps in a smooth introduction to the work environment. It is in my opinion also that (the respondent) does not currently pause (sic) a risk to the general public.

My plan with her is to continue on current medications.…Continue to provide supportive therapy with her case manager. Together with offering regular reviews in the clinic. (emphasis added)

  1. [24]
    It is uncontroversial that the offending of the respondent constitutions professional misconduct. It is also a view of the Tribunal that the seriousness of the respondent’s conduct warrants that she be reprimanded. This again is an uncontroversial consequence of her offending.
  2. [25]
    The seriousness of the manslaughter charge speaks for itself. However, this was not a single isolated incident involving the physical mistreatment of a child by the respondent. The deceased child suffered numerous episodes of physical abuse, not only by other family members but also at the hands of the respondent. Also, as referred to above, the female foster child also suffered physical abuse at the hands of the respondent from time to time. Further, as Burns J observed during his sentencing remarks, to a significant extent it is likely that the respondent’s failure to seek medical assistance was to avoid the disclosure of injuries caused by domestic abuse. As his Honour observed; “you chose to put your own interests ahead of your foster child”. Such conduct is a particularly disturbing feature. So also is the respondent’s treatment of the child that morning when it must have been clear that he was extremely unwell, likely suffering from a high heart rate with obvious difficulty in breathing.
  3. [26]
    It is also clear from the report of Dr Mansour that the respondent still suffers from a number of serious mental health issues. An adjustment disorder with mixed anxiety and depression and, possibly, a bipolar affective disorder, all of which require ongoing treatment, including medication.
  4. [27]
    Further, while the mental health of the respondent at the time of the death of the child was a relevant consideration, it did not, as Mr Jones reported and Burns J referred to, provide an excuse for the respondent’s gross breach of duty.
  5. [28]
    In all the circumstances it is the view of the Tribunal that the seriousness of the offending on the part of the respondent together with her other clear breaches of duty and trust involving two foster children, together with her associated ongoing mental health issues, warrants the cancellation of the registration of the respondent as a nurse. That the Tribunal will make such an order is not to further punish the respondent but to ensure, as far as is practicable, the protection of the health and safety of the public and to ensure the maintenance of professional standards and the preservation of public confidence in the nursing profession.
  6. [29]
    Suspension from practice will typically be appropriate in circumstances where the Tribunal can be sufficiently confident in the practitioner’s ability to practice without risk to the public (and patients) once the period of suspension has been served. On the other hand, in circumstances where the Tribunal, at the time of hearing, considers the practitioner not to be a fit and proper person to hold registration, then cancellation will often be the more appropriate outcome.[2] This is such a case given that the respondent’s mental health remains in a fragile state, and having regard to the intrinsic seriousness of the subject misconduct.
  7. [30]
    In McBride v Walton,[3] the New South Wales court of appeal identified a number of factors that might require consideration when determining whether or not a person might be a fit and proper person to hold registration as a medical practitioner:
    1. (a)
      whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
    2. (b)
      the intrinsic seriousness of the misconduct qua fitness to practise medicine;
    3. (c)
      whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
    4. (d)
      the motivation which may have given rise to the proven episode of misconduct;
    5. (e)
      the underlying qualities of character shown by previous and other conduct; and
    6. (f)
      whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
  8. [31]
    Before going on to address those matters, not necessarily in the same order, it is the view of the Tribunal that nothing or very little of significance turns on the fact that here it is dealing with a registered nurse rather than a medical specialist. The fact that the subject misconduct did not occur in a professional setting is, of course, though an important point of distinction.
  9. [32]
    Notwithstanding that the misconduct did not involve the mistreatment of a patient in her professional capacity as a nurse, the respondent’s misconduct could only be described as extremely serious. The seriousness of that offending, particularly in the context of her mental health issues must give rise to her fitness to practice as a registered nurse. That is particularly so when the misconduct could not sensibly be explained away as an error of judgment. The conduct of the respondent that day is clearly indicative of a serious defect of character.
  10. [33]
    In this context, the manslaughter charge also has to be seen in the light of the historical physical abuse of the deceased and the respondent’s motive for failing to seek medical assistance. Namely self-preservation. As to the respondent’s underlying qualities of character, there seems to be two characteristics of the respondent at play, depending on the role she is carrying out at the time. As a nurse, the respondent behaves in what seems to be an extremely professional manner. Yet at home, as she herself admitted, she is capable of physical abuse for irrational reasons.
  11. [34]
    As to the conduct post the matters that bring her before the Tribunal, the reports of Mr Jones and Dr Mansour make it tolerably clear that the respondent’s ability to abstain from the abuse of alcohol and to deal with her other mental health issues while unsupervised will determine whether or not she is fit to return to practice. That was not the situation at the time this matter was dealt with by the Tribunal at the relevant time, the board will be best places to address the suitability of the respondent return to practice. 
  12. [35]
    Turning then to when the respondent may apply for registration. It can be readily accepted that the respondent has been responding well to treatment, including abstaining from alcohol while under supervision on parole. However, parole supervision ends on 13 December 2025. In all probability, should the respondent return to nursing, she may practice well beyond that time frame. A critical issue is how the respondent will conduct herself whilst unsupervised. It will be during this period of unsupervised conduct that the respondent’s ability to self-regulate would be able to be more accurately assessed. In particular, her abuse of alcohol as a means of managing her mental health issues.  It is of course impossible to be definitive about these matters but, on balance, the Tribunal has reached the conclusion that the respondent ought to be disqualified for reapplying for registration as a nurse until two years of unsupervised conduct has elapsed. That is until 13 December 2027.

Non-publication

  1. [36]
    At the conclusion of the hearing of this matter, the respondent applied for a non-publication order. In essence, the application was made on the basis that publication of the names of the respondent, her foster children and partner would not be in the public interest and could prejudice her ongoing mental health treatment.
  2. [37]
    The applicant opposes the making of a non-publication order.
  3. [38]
    It is uncontroversial that, as a general rule, the principles of open justice would see the practitioners name being published and, as a consequence, the discretion to make a non-publication order will not be exercised lightly.[4] The onus is on the respondent to satisfy the Tribunal that such an order should be made.
  4. [39]
    Before proceedings further, reliance was placed on the reasoning of Allen QC DCJ in the Health Ombudsman v CSM.[5] That case is of little assistance to the respondent. The offending involved in CSM was relatively minor in the scheme of things. More relevantly though, the assertion that the respondent’s conduct was “inextricably linked” with her mental health requires some consideration. While there is little discussion on the matter, the offending involved in CSM seems to be truly inextricably linked to the practitioner’s mental health. That is, she stole drugs for the purpose of self-medication. The link between the respondent’s misconduct and the consequences thereof and her mental health is far more tenuous.
  5. [40]
    A number of further submissions were made on behalf of the respondent. First, that the publication of the respondent’s name might tend to discourage practitioners from seeking treatment. As a broad generalisation that maybe accepted. However, the Tribunal was not taken to any material that might suggest that publication in the circumstances of this case might lead to that outcome. The Tribunal was not taken to any material that might suggest that the subject respondent might be deterred from seeking appropriate treatment in the event that her name was published.
  6. [41]
    As to the assertion that the publication of intimate details of the respondent’s mental health and abuse she suffered both as a child and as an adult “seems likely to prejudice her on-going treatment”, again the Tribunal was not taken to any material that might support that assertion.
  7. [42]
    Even accepting that more detail was placed before this Tribunal than before the Supreme Court, it seems, with all due respect, that little, if anything would turn on it. The seriousness and nature of the offending against the deceased was spelt out in considerable detail in the sentencing remarks. Further, both the mental health issues suffered by the respondent and her abuse at the hands of others was also dealt with, with some particularity. The reference to the respondent’s mental health has already been addressed in some detail. As to the second matter, while Burns J did not go into detail, he made specific reference to the respondent having suffered one trauma after another both as a child and as an adult. That is, the very unfortunate personal history of the respondent, including her dysfunctional family life, has already been, to a material extent, the subject of publication.
  8. [43]
    While the Tribunal has some sympathy for the respondent on this matter, particularly given the passage of time between being sentenced and this proceeding, it has reached the conclusion that the respondent has failed to place sufficient material before the Tribunal that would warrant a non-publication order being made. At least insofar as her name is concerned.

Orders

  1. [44]
    For the reasons given the orders of the Tribunal are:
  1. The respondent is found to have behaved in a manner that constitutes professional misconduct.
  2. The respondent is reprimanded.
  3. The respondent’s registration as a nurse is cancelled.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from reapplying for registration as a nurse until 13 December 2027.
  5. Each party is to bear their own costs of the proceedings.
  6. The application for a non-publication order is refused save insofar as it involves the names of the deceased and female foster child.

Footnotes

[1][2021] QCAT 50 at [24].

[2]Medical Board of Australia v Jansz [2011] VCAT 1026; Health Ombudsman v Le [2020] QCAT 170.

[3][1994] NSWCA 199 at [34], cited with approval by Allen QC DCJ in Health Ombudsman v DKM [2021] QCAT 50 at [54].

[4]See e.g., ABC v D1 and Ors; ex parte the Hearld and Weekly Times Ltd [2007] VSC 480, per Forrest J.

[5][2020] QCAT 55 at [22].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Powell

  • Shortened Case Name:

    Health Ombudsman v Powell

  • MNC:

    [2022] QCAT 112

  • Court:

    QCAT

  • Judge(s):

    Judicial Member R Jones Mr Peter Davies Ms Laura Dyer Mr Stephen Lewis

  • Date:

    20 Apr 2022

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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