Health Ombudsman v MKY[2024] QCAT 310

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

37. REASONS FOR DECISION

37. [1]
    The Health Ombudsman (OHO) referred disciplinary proceedings to the Tribunal against MKY pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) on 31 March 2023.  The referral relates to an alleged breach of professional boundaries by MKY, a registered chiropractor.  The referral alleges that MKY engaged in an inappropriate personal and sexual relationship with his patient between 2020 and 2021.

37. [2]
    The Tribunal has jurisdiction to hear the matter pursuant to s 94(1)(b) of the HO Act.  The proceeding is therefore a disciplinary proceeding as defined in Sch 1 of the HO Act.  The matter has been listed for an oral hearing before a judicial member of the Tribunal^[1] on 4 September 2024.

37. [3]
    Section 126 of the HO Act provides:

3. 126
   Tribunal to be assisted by assessors

3. (1)
   In conducting a hearing of a disciplinary proceeding relating to a registered health practitioner, the tribunal must be assisted by—

3. (a)
   1 assessor chosen by the principal registrar from the public panel of assessors; and

3. (b)
   2 assessors chosen by the principal registrar from—

3. (i)
   the professional panel of assessors for the practitioner’s profession

3. …

3. (2)
   Despite subsection (1), QCAT may conduct a hearing of a disciplinary proceeding without the assistance of assessors if QCAT is satisfied it is necessary because of the urgency of the matter.

37. [4]
    The panel of chiropractor professional assessors from which the Tribunal can appoint assessors is extremely small.

37. [5]
    The relevant procedural history of this matter is:

3. (a)
   the parties filed hearing bundles and provided availability for hearing in this matter on 12 December 2023;

3. (b)
   the parties have filed and rely upon a Statement of Agreed Facts;

3. (c)
   characterisation of the conduct is not in dispute;

3. (d)
   some elements of the appropriate sanction are in dispute;

3. (e)
   an oral hearing was listed for 27 March 2024, and had to be vacated due to a lack of professional assessors available to assist the Tribunal;

3. (f)
   the matter was listed for oral hearing on 4 September 2024 because it was the first possible date thereafter on which the parties and the Tribunal could accommodate the hearing; and

3. (g)
   only one professional assessor and one public assessor are available on 4 September 2024.

37. [6]
    In Nursing and Midwifery Board of Australia v Burling,^[2] Judicial Member the Hon P J Murphy SC observed that s 126(2) of the HO Act implicitly contemplates that the Tribunal could proceed where only one of the professional assessors is available.^[3]  In that matter, whilst two professional assessors were constituted to assist the Tribunal, one of the assessors did not appear and could not be contacted on the day of the hearing.  His Honour was satisfied that the matter was urgent, noting specifically the time since the referral had been filed and attributes specific to the respondent, which were relevant to the issues of urgency.^[4]

37. [7]
    In the present matter, the referral was filed on 31 March 2023. The matter proceeded expeditiously through the Tribunal’s processes and it has been ready for hearing since 12 December 2023.

37. [8]
    The Tribunal has already had to vacate one hearing date because professionally qualified assessors were not available and the proposed date is the first one which is convenient to both parties, having been identified some time ago.

37. [9]
    The Tribunal must act in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), specifically ss 3(b), 4(c) and 28(3)(d), which provide:

3. 3
   Objects

3. The objects of this Act are—

3. …

3. (b)
   to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick

3. …

3. 4
   Tribunal’s functions relating to the objects

3. To achieve the objects of this Act, the tribunal must—

3. …

3. (c)
   ensure proceedings are conducted in an informal way that minimises the costs to parties, and is as quick as is consistent with achieving justice

3. …

3. 28
   Conducting proceedings generally

3. …

3. (3)
   In conducting a proceeding, the tribunal—

3. (d)
   must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit.

37. [10]
    The assessor’s statutory function is to sit with the tribunal and advise it about questions of fact.^[5] Notably, in this matter, the parties have agreed the facts on which the referral is to proceed. 

37. [11]
    I formed the provisional view that, given the length of time the matter has been awaiting a listing and the fact it has already been delisted once already because of a lack of professional assessors being available,  the matter is now urgent and it is necessary for the matter to be heard and determined with the assistance of only one professional assessor.  I sought the parties’ views in relation to this issue on 8 August 2024 by email through my associate.  The parties responded that they concurred with this provisional view and consented to the matter being listed for hearing and determination with one professional and one public assessor.

37. [12]
    I am satisfied that the matter is urgent, and it is necessary for the matter to be listed for hearing with one professionally qualified assessor, as is implicitly contemplated by s 126(2) of the HO Act.  I order  that the Tribunal will conduct the hearing of this matter constituted by a judicial member and assisted by one professional assessor and one public assessor on 4 September 2024.