Health Ombudsman v ICN[2024] QCAT 246

[2024] QCAT 246

Queensland Civil and Administrative Tribunal

OCCUPATIONAL REGULATION

Reid, Judicial Member

Assisted by:

Ms H barker

ms E Mckibbin

mr M halliday

OCR 163 of 2023

HEALTH OMBUDSMANApplicant

v

ICNRespondent

Brisbane

Tuesday, 4 June 2024

Reasons for Decision

1. [1]
   Judicial Member: The Respondent, on 11 September 2022, committed a serious criminal offence of choking his wife, whom he had married in 2009. They have two young children. As a result of the offending, he was arrested and remained imprisoned until sentenced by his Honour Judge Smith on 14 April 2023.
2. [2]
   His Honour imposed a head sentence of two years’ imprisonment, suspended after he had served a period of 214 days, which he had served in pre-sentence custody. His Honour set an operational period of two years; that is, to 13 April 2025. He was, therefore, released from incarceration on that day.
3. [3]
   It is important — in circumstances where the Respondent’s submissions suggests the lack of ongoing injury to the Respondent’s wife suggests this offending was less serious than other cases of physical assault — to understand the serious nature of choking offences.
4. [4]
   In a decision of R v MCW, Mullins J, as her Honour then was, and with whom others agreed, said:

The gravamen of this offence committed by the applicant was the choking of the complainant in the domestic setting.  The offence under section 315A was introduced as a result of the Legislature accepting the recommendation made about the creation of a specific offence of strangulation in the report “Not Now, Not Ever:  Putting an End to Domestic Violence in Queensland” by the Special Taskforce on Domestic and Family Violence in Queensland.  This was explained in the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill 2015, pursuant to which section 315A was enacted:

“The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide.  The Taskforce noted the importance of identifying this conduct to assist in assessing risk to victims and increasing protections for them.”

It is therefore not useful to consider sentences for an assault occasioning bodily harm, even where the assault was committed in the domestic context, as comparable authorities for an offence committed under section 315A.^[1]

In my view, similar considerations apply in respect of the issues before the Tribunal.

5. [5]
   The Respondent was born on 3 December 1978, so is now 45 years old. He commenced his nursing studies at QUT in 2009 and completed them in December 2011. He worked, thereafter, as a nurse until, it seems, he was dismissed from his work as a nurse by BlueCare in March 2022. I do not know the circumstances of that event. 
6. [6]
   He has not worked as a nurse since, although his counsel submitted I can take into account the period where he was not working as a nurse from March 2022 until the offending in September 2022 as relevant to the imposition of the period of suspension. I do not see, in the circumstances of this case where no recency or practice issues appear to arise, how that is so.
7. [7]
   After this offending, the Board imposed immediate registration action on 11 October 2022, suspending his registration. His registration has been suspended since, although, of course, during imprisonment he would not, in any case, have been able to work as a nurse.
8. [8]
   The Applicant accepts that I should take into account the whole of the period from September 2022, when the Respondent, was incarcerated in determining an overall period of absence from employment as a nurse in imposing the appropriate suspension.
9. [9]
   Since his imprisonment, and his release from prison, he was able to obtain work as a tour guide, working part-time from 14 April 2023. He estimates that he works on average one day per week, earning about $1,000 per month gross, although one assumes, on that level, the net income would not be significantly different. No material has been placed before me about that employment.
10. [10]
    The Applicant submits that the Respondent ought to be suspended until 11 September 2025, being three years after he was first precluded from employment as a nurse by reason of his incarceration. Two matters, in particular, were said to support such a view, although in condensing it to those two matters I do not wish to suggest that other matters were not relied on.
11. [11]
    In respect of the comparable cases set out at paragraphs 79 to 85 of the Applicant’s submission, it is said that an overall period of inability to work (as a result of the suspension and incarceration) of about three years would be appropriate.
12. [12]
    In particular, during the course of argument, significant weight was placed on the decision of Nursing and Midwifery Board of Australia v Sellen.^[2] That case involved a dispute where an enrolled nurse assaulted her neighbour. The practitioner went into the other woman’s kitchen, grabbed her around the throat and pushed her against the wall, grabbed her arm and shoulder, and propelled her across the kitchen causing her to strike things, eventually fall and fracturing her hip.  She was sentenced to a head sentence of two and a-half years’ imprisonment to be suspended after serving 10 months.
13. [13]
    Ultimately, the Tribunal found that the practitioner’s conduct constituted professional misconduct and that she should be reprimanded and disqualified from applying for a registration for a further six months, which equated to an effective preclusion period of five years.
14. [14]
    In my view, there were a number of features of that case which support the view that Sellen was a more serious case. As I have said, she was unlawfully in the premises, as well as placing her hands on the woman’s throat (although she was not charged with choking) and she pushed her, with a resultant grievous bodily harm. 
15. [15]
    The head sentence of two and a-half years and the period of actual incarceration of 10 months compared to two years and seven months respectively in this case all support the view that that case was more serious. But the effective preclusion period of five years in that case is significantly more than the three years advocated for by the Applicant in this case.
16. [16]
    Second, the Applicant’s submissions refer to a decision of the Council of the Regulation of Health Care Professionals v General Dental Council & Fleischmann,^[3] which was concerned with a dentist who had been convicted of 12 counts related to inciting the distribution of and possession of child exploitation material.  He was sentenced to community rehabilitation order for three years and ordered to remain on the sex offenders’ register for five years.
17. [17]
    Justice Newman, in that case, said:

Since Mr Fleishmann has been sentenced to a community rehabilitation order for a period of three years from December 2003 (with conditions) it followed that, if he was suspended for the maximum period of 12 months, he would be able to resume his practice before he had satisfied his sentence.  In the words of Sir Thomas Bingham in Bolton v Law Society (citation omitted) this would be before he had…paid his debt to society.^[4]

18. [18]
    Justice Newman continued:

I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offences or offences, he should not be permitted to resume his practice until he has satisfactorily completed his sentence.  Only circumstances which plainly justify a different course should permit otherwise.  Such circumstances could arise in connection with a period of disqualification for driving or time allowed by the Court for the payment of a fine.  The rationale for the principle is not punish the practitioner while serving his sentence but that good standing in a profession must be earned if the reputation of the profession is to be maintained.^[5]

19. [19]
    As the Applicant’s submissions point out, in Australia a similar approach has been adopted, for example Health Ombudsman v OOD where the Tribunal found that:

…it would be incongruous, and inconsistent with important principles of deterrence and maintenance of public confidence in the profession, to permit the practitioner to apply for registration while she is still on parole for serious drug offending.^[6]

20. [20]
    I note in this case that there is no issue of parole, but a suspended sentence. However, in my view, whilst where such a sentence is imposed it might perhaps be easier to digress from the general principle, the general principle still has application. In the circumstances of this case, counsel for the Respondent submitted that I should not follow that principle and relied, in particular, on a number of matters, some of which were of more importance than others.
21. [21]
    In particular, he relied on:

1. the Respondent’s expressed remorse;
2. the fact that he’s undertaken further training and including a Graduate Certificate in Palliative Care;
3. mental health issues, discussed in particular in reports which are before me of Professor James Freeman on 17 March 2023 and reports of Mr Ian Polglase, a psychologist who has treated the Respondent after the circumstances of this offending.

22. [22]
    Counsel for the Board indicated in his submission that the contents of those reports do not show a strong causal connection between the mental health issues that arose in the circumstances of this case and the Respondent’s offending, relying on the well-known principle set out in R v Yarwood.^[7]
23. [23]
    I merely observe that in the sentencing remarks of his Honour Judge Smith, his Honour did not appear to indicate an overwhelming reliance on those mental health issues, and, in any case, make clear that it was not an excuse for his gross misconduct. As I have said, counsel for the Respondent also relied on the nature of a suspended sentence in making the submission that I ought not follow the principle in Fleischmann.
24. [24]
    In my view, there is nothing in the circumstances of this case to indicate that suspension earlier than the completion of the operational period of the sentence — that is, in April 2025 — is justified.
25. [25]
    Indeed, after discussion between us, we are of the view that suspension up to 11 September 2025 is appropriate. In so ruling, we are particularly influenced by the decision of Sellen to which I have referred. Accepting that is a significantly more serious case as reflected in the criminal sentence, we note that the effective preclusion period in that matter was one of five years in the circumstances where it is accepted that the respondent’s misconduct involves professional misconduct.
26. [26]
    It is ordered:

1. we find that the conduct of the Respondent amounts to professional misconduct;

2. the Respondent is reprimanded;
3. the Respondent’s registration as a nurse be suspended until 11 September 2025; and
4. the immediate registration action imposed Health Ombudsman on 11 October 2022 be set aside.

27. [27]
    I note that in a decision of Health Ombudsman v JTM, it was said:

To the extent that the health and safety of the public is now relevant to this respondent, that is a matter for the Board in the event that the respondent again seeks to practice as a nurse.^[8]

28. [28]
    So too in this case, the Respondent will annually be required to apply for registration as a nurse. Whether it’s found ultimately that he is a suitable candidate is a matter for the Board, who can require detailed submissions in respect of that issue.

Orders

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended until 11 September 2025.
4. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Office of the Health Ombudsman on the respondent on 11 October 2022 is set aside.