Health Ombudsman v Warburton
[2025] QCAT 167
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- Health Ombudsman v Warburton[2025] QCAT 167
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Health Ombudsman v Warburton[2025] QCAT 167
Health Ombudsman v Warburton[2025] QCAT 167
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Warburton [2025] QCAT 167 |
PARTIES: | HEALTH OMBUDSMAN (applicant) v KANJEET KAUR WARBURTON (respondent) |
APPLICATION NO/S: | OCR123-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 19 March 2025 (ex tempore) |
HEARING DATE: | 19 March 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Dick SC Assisted by: Mr S Lewis Ms E McKibbin Ms M Ridley |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
|
APPEARANCES & REPRESENTATION: | |
Applicant: | Ben Scarrabelotti, A/Principal Legal Officer of the Office of the Health Ombudsman |
Respondent: | Gregory McGuire instructed by Phillips Crawford Lawyers |
REASONS FOR DECISION
Background
- [1]This is a disciplinary matter referred to the Tribunal of the appropriate Act. The respondent was convicted of two criminal offences while a registered nurse. On 7 of November 2023, she pleaded guilty to and was sentenced in respect of one count of attempting to procure grievous bodily harm (domestic violence offence) and one count of attempting to procure a malicious act with intent (domestic violence offence).
- [2]She was sentenced to five years imprisonment, suspended after serving 16 months, with an operational period of five years. Therefore, the operational period will expire on 7 of November 2028. There is really no argument that the respondent’s conduct amounts to professional misconduct and it would be a very unusual finding to be otherwise in a case of a criminal nature that draws a sentence of that magnitude.
- [3]In addition, in summary, over six months from 1 April 2021 to 6 October 2021, the respondent hired and paid two third parties to grievously injure her ex-partner. This was ultimately unsuccessful in causing him any physical harm due to either the ineptitude or the lack of enthusiasm on behalf of the proposed assailants to act on her instructions.
- [4]That circumstance, including the nature of the directions given to those two people to have the complainant’s penis and tongue cut off, his face burnt with acid, his spine to be severed with a knife for the purpose of causing paralysis, or to break every bone in his body so that he could no longer walk or talk, means that it would be not open to the Tribunal on any reasonable view of those facts to find that her behaviour was anything other than professional misconduct, and she does not argue that it should be so.
Discussion and sanction
- [5]She was 47 or 48 when she engaged in the conduct and had been a registered nurse in Australia since 28 September 2009. From 2012, she worked as a nurse in general practice in Cairns. In October 2021, the Office of the Health Ombudsman became aware of the police investigation, and on 3 December 2021 (i.e., just over three years ago), the Health Ombudsman took immediate registration action by suspending her registration.
- [6]In respect of the misconduct, of course, it is for the applicant to bear the onus of proof. But as I say, in the circumstances of this matter, it would be difficult for any reasonable Tribunal to come to any other view.
- [7]The matter before the Tribunal concerns sanction. Disciplinary proceedings are protective, not punitive, in nature and in this way differs from the criminal courts. I say that because the attitude of the complainant is less relevant here because there are reasons for the sanction, such as to:
- prevent practitioners who are unfit to practise from practising;
- secure the maintenance of professional standards; and
- assure members of the public and the profession that appropriate standards are being maintained.
- [8]In deciding the appropriate sanction, the Tribunal must consider a number of factors:
- The nature and seriousness of the practitioner’s conduct. The nature and seriousness of the practitioner’s conduct here is very grave.
- The insight and remorse shown by the practitioner. There is evidence of some attempts for therapeutic treatment and/or counselling.
- The evidence of rehabilitation or steps taken to prevent the recurrence of the conduct – I will not repeat what I have just said. (d) The facts giving any insight into the conduct, including mental health matters. Those issues, of course, can be two-edged here. There are reports before the Tribunal, and were reports before the sentencing judge, in which emphasis was given to the fact that an abuse of alcohol was a significant factor. The tribunal has some difficulty with that proposition. If it was merely a matter of unfortunate emails sent late at night, that may be an explanation. It is very hard to find that as an explanation for something that happened over six months, involved many contacts, the payment of a significant amount of money and the offer of an even more significant amount of money.
- [9]The respondent has a very good history up until the time of these offences, and it is sad to see that she has been brought to the position she is in by the offences. But as I say, the offences were persistent and over a relatively lengthy period of time. She provided the proposed assailants with the victim’s name, residential address and photograph.
- [10]She had paid a significant amount and offered an even more significant amount to the proposed assailant. I have given details of the comments she made about what she wanted done to the complainant. There were unsuccessful attempts. That did not stop her. She used encrypted methods of communication.
- [11]That is not something one does when suffering from drunkenness. The attempts only ceased when the police became involved when she was arrested. These matters demonstrate that her conduct was entirely out of kilter with her profession as a nurse.
- [12]There has been some discussion about the fact that although it did not happen during her practice, she in fact approached a patient whom she viewed might be “up for it”. [13] The applicant has asked for a cancellation or a disqualification. That means that the respondent would need to reapply after the period specified and registration is not guaranteed. Additionally, at the time of application the respondent must satisfy the applicant that, not only are her prerequisite qualifications satisfied, but that she is a fit and proper person to be granted registration. The requisite qualifications will include
the fact that she will no longer have recency of practise and may require further education.
- [14]In order to disqualify the respondent’s registration, it is necessary for the Tribunal to decide at the time of the hearing that she is not a fit and proper person to be registered as a nurse.
- [15]It is accepted that at the time of the conduct that was the case, and there is no recent or new evidence, or report, which allows the Tribunal to come to the view that she is a fit and proper person at this time.
- [16]It is a case where a significant period of preclusion from practice is warranted and that is supported by the comparable authorities that have been put before the Tribunal. No two cases are exactly the same and each case turns on its own facts. But those authorities provide the limitations and ambit of an appropriate sanction.
- [17]The question of cancellation is a balancing exercise, but in this case the Tribunal is comfortably satisfied that there should be a cancellation rather than a suspension. One of the matters that the Tribunal is required to look at is the question of remorse and rehabilitation, and there is some evidence of that. The respondent has provided a large number of character references, and the Tribunal has paid heed to those.
- [18]There is an important principle that has been discussed during the course of submissions, which goes to the length of time before she should be allowed to reapply. Where a practitioner has been convicted of a serious criminal offence, ordinarily they will not be permitted to return to practice unless they have completed their sentence, including the operational period of a suspended sentence, unless there are exceptional circumstances which would provide otherwise. Those cases of exceptional circumstances are few and far between.
- [19]The principle that has been discussed is sometimes called the Fleischmann principle, articulated in Council for the Regulation of Healthcare Profession v General Dental Council and Fleischmann [2005] EWHC 87 (‘Fleischmann’).[1] That principle has been adopted in Queensland and in cases before this Tribunal, I note in particular Health Ombudsman v OOD [2021] QCAT 388 (‘OOD’).
- [20]In Fleischmann, Newman J said:
Since Mr Fleischmann had 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 twelve 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 (1994) 1 WLR 512, 518 F-G, this would be before he had “… paid his debt to society”.
- [21]Notably, this quote appears at [34] of OOD.
- [22]
I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence.
- [23]In this case, as I have said earlier, that will not be until November 2028. The order proposed by the applicant takes into account the time for which the respondent’s registration has been suspended prior to this hearing. Such time is often regarded by the Tribunal as time served, akin to a de facto suspension, in determining the appropriate length of time she should be precluded from practicing.
- [24]The applicant has submitted it should be four years, eight and a-half months. The Tribunal is of the view that, as was stated by the learned sentencing judge, this was very serious behaviour.
- [25]It is unfortunate that this serious behaviour has led to the respondent being in the difficult circumstances in which she now finds herself. The order that the Tribunal is going to make, which I will do more formally in a moment, will disqualify her from applying for registration for a period of four years.
- [26]That mitigates slightly the four years, eight and a-half months suggested by the applicant, but the Tribunal is aware she will have to reapply for registration. Upon doing so, she will be confronted with having no recency of practice and there will be other steps that she might have to take.
- [27]Accordingly, the Tribunal makes the following orders:
Orders
- 1.The conduct of the respondent constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).
- 2.Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
- 3.Pursuant to s 107(3)(e) of the HO Act, the respondent’s registration is cancelled.
- 4.Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a health practitioner such that she is preclude from practice for a period of four (4) years.
- 5.Pursuant to s 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service such that she is precluded from doing so for the same period as that which she is disqualified from applying for registration as a health practitioner.
- 6.Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on the respondent on 3 December 2021 is set aside.
- 7.There is no order as to costs.