Health Ombudsman v Abela[2023] QCAT 312

[2023] QCAT 312

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

JONES, Judicial Member

Assisted by:

DR FORRESTER

MR KERRIDGE

MR LEWIS

No OCR 199 of 2022

HEALTH OMBUDSMANApplicant

v

ABELA, Lee Shaun Respondent

BRISBANE

THURSDAY, 13 JULY 2023

JUDGMENT

1. [1]
   The finding and orders of the Tribunal in this matter are as follows. The Tribunal finds that the conduct of the Respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013. It is ordered:

1. (i)
   Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the Respondent is reprimanded.
2. (ii)
   Pursuant to section 107(3)(d) of the Health Ombudsman Act 2013, the Respondent’s registration is suspended for a period of six months.
3. (iii)
   There be no order as to costs.

1. [2]
   It is also noted that on 28 March 2023 this Tribunal made a non-publication order prohibiting publication of the victim of the Respondent’s criminal offending or any family members of the victim. That order should continue.

1. [3]
   By way of introduction, this proceeding is concerned with an application brought by the director of proceedings on behalf of the Health Ombudsman (the Applicant) seeking the relief of the type found and ordered by this Tribunal against Lee Shaun Abela (the Respondent). The following reasons are those that underlie the finding and orders made by this Tribunal.

Background

1. [4]
   By way of background, by reference to the agreed statement of facts, the following matters are uncontroversial:

• The Respondent completed a Diploma of Nursing in 2017. He was first granted registration by the Nursing and Midwifery Board of Australia on 18 May 2017.
• Notwithstanding an indication made to those representing the Health Ombudsman that the Respondent intended to withdraw his registration, he nonetheless remains registered as an enrolled nurse.
• At the time of the conduct that brought the Respondent before this Tribunal, he was employed by the Cairns Hospital, Cairns and Hinterland Hospital and Health Service.
• He has no criminal convictions prior to the conduct that brings him before this Tribunal.
• As far as the Tribunal is aware, the Respondent is currently unemployed.
• The agreed statement of facts was signed by the Respondent on 20 December 2022. He has not participated in these proceedings since that time and, unsurprisingly, he has made no further representations to the Tribunal.

Considerations and conclusions

1. [5]
   Professional misconduct relevant to this proceeding is defined as follows:

Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

1. [6]
   The meaning of what constitutes “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at paragraph 110, where it was observed:

It is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, “substantial” connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct; the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

1. [7]
   Here, there is no allegation of any conduct involving a patient. That said, though, there is no doubt that the conduct that brings the Respondent before this Tribunal comfortably falls within the definition of professional misconduct. It should also be noted that the standards, codes, and guidelines for the nursing profession are developed by the Board and are admissible in these proceedings. Those standards and guidelines constitute the appropriate professional conduct or practice for an enrolled nurse. Those standards of practice state that practitioners are to promote a positive professional image and demonstrate knowledge of those codes and guidelines. Unsurprisingly, enrolled nurses should be ethical and trustworthy, and display qualities such as integrity, truthfulness, dependability, and compassion. The Respondent’s conduct here was a serious departure from the professional standards expected of an enrolled nurse, and the principle underpinning those relevant codes and standards.

1. [8]
   The conduct that brings the Respondent before the Tribunal can be summarised as follows. The victim was a child of the Respondent. At the time, the victim and two other siblings of the Respondent were staying with the Respondent at his premises. The Respondent and his wife had been separated for some time, and they shared custody of the children. At the relevant time, there was clearly some disturbance between the victim and the other siblings, and the Respondent intervened in a violent manner. He assaulted the victim who, as has been observed, was a young child. And, disturbingly, the assault occurred in front of the other two siblings. On being charged, the Respondent initially failed to cooperate with the authorities. But to some extent, that can be, as Mr Lloyd representing the Ombudsman accepted, understood in the light of what occurred when the Respondent was sentenced.

1. [9]
   The Respondent was initially charged with a count of assault occasioning bodily harm, the circumstance of aggravation being a domestic violence offence. But he was also charged with what could be just called a choking offence.

1. [10]
   When that more serious charge was abandoned by the Director of Public Prosecutions on 21 March 2022, the Respondent pleaded guilty to the one count of assault occasioning bodily harm, being a domestic violence offence. He was sentenced to twelve months imprisonment with immediate release on parole. Unsurprisingly, a conviction was also recorded.
2. [11]
   It should also be noted that the Respondent had a history of instances of violence, or at least matters that caused the domestic violence orders to have been made. In that regard, on 21 March 2021, in the Magistrates Court at Cairns, a further domestic violence order was imposed for a period of five years, with a number of conditions.
3. [12]
   That included that the Respondent be of good behaviour towards the aggrieved person, being his wife, and their children. Also, that the Respondent does not commit any further act of domestic violence. The Respondent was ordered not to approach within 100 metres of where the aggrieved lived or worked or frequented and the Respondent was ordered not to contact or attempt to contact the aggrieved by any means, with a number of exceptions, which do not need to be particularised here.
4. [13]
   Following the sentence of the Respondent for the criminal offence of assault occasioning bodily harm on 25 March 2021, that domestic violence order was extended by a further one year, that is until 25 March 2027.
5. [14]
   In the matter of the Health Ombudsman v Franklin [2021] QCAT 186, it was said at paragraph 15:

In the circumstances of this case, where the Respondent is no longer practising as a podiatrist and has professed an intention not to return to the profession, the principal purposes of sanction are to protect public confidence in the profession by denouncing the respondent’s conduct and deterring other members of the health professions that might be minded to act in a similar way...

1. [15]
   In this instance, the Respondent is no longer practising as an enrolled nurse. But nonetheless, as has already been observed, maintains that registration. In any event, the observations made in the case of Franklin, in the circumstances of this case, are of particular relevance.
2. [16]
   It may well be that personal deterrence does not loom particularly large, at least at the present time. But the need for this Tribunal to send an appropriate message of general deterrence looms particularly large. That is, any orders made by this Tribunal ought to make it clear that conduct of this sort will not be tolerated and, when discovered, serious sanctions will follow; in that way, hopefully deterring others from such conduct.
3. [17]
   In cases such as this, issues such as insight and remorse are relevant factors that need to be taken into account when imposing any sanction. As has been pointed out, the Respondent initially refused to cooperate with the police. However, again, as has already been pointed out, that has to be seen in the context of the Crown not proceeding with the more serious charge of choking. Once that was dropped, he pleaded guilty to the charge of assault occasioning bodily harm.
4. [18]
   As Mr Lloyd accepted, in that regard, it could be said that he had cooperated with the administration of justice. It is also of some significance that the Respondent signed off on an agreed statement of facts which was clearly detrimental to his case. That is, it contained a number of frank admissions that worked against his interest.
5. [19]
   It was also of some relevance – although hardly provides an excuse – but does give some context, perhaps, to his conduct, in that the Respondent had a particularly troubling childhood and would appear to have been going through a difficult time in his life at the time of this assault. Before the sentencing Judge, a number of submissions were made. It would appear that those submissions were accepted by the sentencing Judge and although we have no direct evidence before us about these matters, there would appear to be no reason why this Tribunal should not also proceed on the submissions accepted by the sentencing Court.
6. [20]
   The submissions made on behalf of the Respondent included that he had a particularly troubled upbringing during which the Respondent was exposed to drug and alcohol use at a young age and he himself had developed drug and alcohol addictions. At age 27 the Respondent took steps to address his substance misuse and studied nursing and, in 2017, the Respondent started seeing a psychologist, Henry Gobus. A report of Mr Gobus was provided to the sentencing Judge. Her Honour went on to say after referencing that report:

You have been seeing a psychologist since 2017 and have been working on your emotional issues off and on since that time and the psychologist says that you have been working very hard on trying to change the way that you have been living your life and that is a very positive thing. You completed a nursing degree but I imagine that nursing degree will finish today one (sic) a conviction is recorded for this.

1. [21]
   Her Honour also proceeded on the basis that at the time of the assault he was going through a particularly stressful time and it would also appear that her Honour accepted that, of his own volition, the Respondent had engaged with the, “Stopping Family Violence” program through the body known as “Relationships Australia”. All of that said, as has been observed, may well provide context to what occurred but it in no way excuses the conduct. Quite clearly, the Respondent has a history of troubling behaviour reflecting in particular issues of an inability to control his anger.
2. [22]
   That said, it needs to be borne in mind that the Respondent had no prior criminal convictions, notwithstanding there being evidence of prior domestic violence issues, and has not been the subject of any previous disciplinary proceedings. On balance, the Tribunal has formed the view that the Respondent’s post-offending conduct reflects a not insignificant degree of insight and even remorse. Unfortunately, though, on the material before the Tribunal, it is not able to take those matters any further.
3. [23]
   The Tribunal has been referred to a number of cases which will not be gone into in any detail. But the following observations can be made in respect of those cases. The first was the Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157. That involved a male registered nurse assaulting his 16 year old daughter with a wooden rolling pin. There, the victim was clearly older than the victim in this case and, significantly, it involved the use of a weapon which required the 16 year old to be taken to hospital.
4. [24]
   There, was a joint submission in respect of a submission that he be suspended for a period of three months. Notwithstanding that joint submission, the Tribunal reprimanded the practitioner and suspended him for a period of one month. It would appear that in the imposition of only a one month suspension, the Tribunal placed significant relevance on his level of insight and remorse and also that the assault was a one-off incident and clearly out of character.
5. [25]
   The other case was Health Ombudsman v HCG [2020] QCAT 166. That was another incident of domestic violence where the practitioner headbutted his partner causing a laceration over her left eye. It also involved property damage. In that matter there was also a joint submission for a reprimand and an eight month period of disqualification.
6. [26]
   In Health Ombudsman v JTM [2020] QCAT 394, there was another incident of a registered nurse pleading guilty to one count of assault occasioning bodily harm whilst armed which, again, was a domestic violence offence. That case can be distinguished in that it involved the use of a weapon, being a knife, which the practitioner used to threaten his partner.
7. [27]
   The final matter of a case to which the Tribunal would refer is Medical Board of Australia v Koulouris [2020] VCAT 348. That involved a serious assault where the practitioner struck his partner with a belt some fifteen times, causing a number of injuries. There was also a second offence involving a breach of that order and a further offence involving the practitioner assaulting the victim twice causing bruising under her right eye.
8. [28]
   There was evidence before the Tribunal in that instance that the practitioner had taken a number of steps of his own volition to address his anger management issues. Eventually, the outcome in that matter was that the Tribunal found that the conduct, unsurprisingly, amounted to professional misconduct and that he should be reprimanded. His registration was suspended for a period of three months.
9. [29]
   The Tribunal also had the benefit of another decision of VCAT in Paramedicine Board of Australia v VQK [2022] VCAT 382. That involved a stalking charge, being a domestic violence offence, and also a failure to inform the Board about his criminal conduct. That practitioner was, among other things, reprimanded and his practice suspended for a period of six months. The cases provide an extremely wide range of periods of suspension and/or disqualification, and of course, each case turns on its own particular facts.
10. [30]
    Here, the Tribunal considers the offending of the Respondent particularly egregious for the following reasons. It involved a serious assault on a 10 year old child of the Respondent in front of two siblings. It is also of relevance in this regard that there had been previous domestic violence orders in place. On balance, that is the reason why the Tribunal concluded that the period of suspension should be at the upper end of that contended for on behalf of the Health Ombudsman and that it be for a period of six months.