QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v Patel [2019] QCAT 398	
PARTIES:	HEALTH OMBUDSMAN	
	(applicant)	
	v	
	YOGESHKUMAR PATEL	
	(respondent)	
APPLICATION NO/S:	OCR130-19	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	4 December 2019 (ex tempore)	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Judge Allen QC, Deputy President

Assisted by:
Dr K Forrester
Mr M Halliday
Mr S Lewis	
ORDERS:	1.	Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that 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.	Each party must bear the party’s own costs for the proceeding.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent is a registered nurse – where the applicant instituted disciplinary proceedings against the respondent in relation to conduct that involved the respondent inappropriately dealing with a mental health inpatient’s bank account – where there were no criminal proceedings against the respondent – where the respondent has been subject to a de facto suspension of his registration for approximately two and a-half years – where the respondent has expressed remorse and undertaken an education program – where the parties agree that the respondent’s conduct should be characterised as professional misconduct – where the parties agree as to the appropriate sanction – whether the sanction proposed is appropriate
Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107(2)(b)(iii), s 107(3)(a)
Health Practitioner Regulation National Law (Queensland), s 5	
REPRESENTATION:	

Applicant:	
The Director of Proceedings, on behalf of the Health Ombudsman	

Respondent:	
Self-represented	

APPEARANCES:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	This is a referral of a Health Service complaint against Yogeshkumar Patel (“the respondent”) pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”) by the Director of Proceedings on behalf of the Health Ombudsman (“the applicant”).
[2]	The applicant alleges the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction.  The parties are agreed as to the facts of the matter, including the facts that are alleged to constitute professional misconduct, that the conduct should be characterised as professional misconduct, and that an appropriate order by way of sanction is a reprimand.
[3]	The respondent was first registered as a registered nurse on 11 January 2008.  From 2012 until 2016 the respondent was employed by the West Moreton Hospital and Health Service and at the relevant time was employed at The Park Centre for Mental Health at Wacol.  The respondent was part of a treating team for a patient who had been placed on a forensic order in 1995 (“the patient”).  The patient received treatment for a number of mental health conditions, including paranoid schizophrenia, anti-social personality disorder, and poly-substance abuse, and had also received treatment for a gambling addiction.
[4]	The patient received a Centrelink payment that was transferred into his bank account every fortnight.  On 28 May 2016 the respondent assisted the patient with installing a mobile phone gambling application on the patient’s mobile telephone, and in doing so obtained the details of the patient’s bank account.  Between 2 and 6 June 2016 the respondent, without authority, effected eight separate transactions, transferring in total the sum of $11,000 from the patient’s account into the respondent’s bank account.  The respondent subsequently spent the dishonestly obtained funds whilst gambling at casinos on 2, 3 and 6 June 2016.  
[5]	On 7 June 2016 the bank advised the respondent that there was suspected fraudulent activity with respect to his account and that his online bank account had been frozen.  On 9 June 2016 the respondent transferred the amount of misappropriated funds back into the patient’s account, having borrowed the funds from an associate.  The patient subsequently refused to proceed with a formal complaint to police and the respondent was not subject to criminal proceedings.
[6]	The applicant submits, and the respondent agrees, that the conduct of the respondent amounts to professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law Act (Queensland).  The Tribunal decides, pursuant to s 107(2)(b) (iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.
[7]	 On 9 June 2016 the Office of the Health Ombudsman received a notification from the West Moreton Hospital and Health Service concerning the respondent’s conduct.  On 8 November 2016 the Health Ombudsman took immediate registration action by imposing conditions on the respondent’s nursing registration.  The conditions included the requirement that the respondent was prohibited from practising in any role requiring direct or indirect clinical patient contact. 
[8]	On 24 September 2018 the Health Ombudsman varied the conditions on the respondent’s nursing registration, allowing the respondent to have direct and indirect clinical contact with patients between Monday and Fridays only.  
[9]	On 23 October 2018 the Health Ombudsman varied the respondent’s conditions to enable him to obtain employment as a registered nurse in an educator role where no clinical patient contact was required.  
[10]	On 8 March 2019 the respondent made an application to the Health Ombudsman requesting that all restrictive conditions be removed from his nursing registration.  The respondent then completed a “Safe Professional Boundaries” course on 10 April 2019, and provided a certificate of completion.
[11]	On 7 May 2019 the Health Ombudsman removed all conditions on the respondent’s conditions as a registered nurse.  
[12]	The parties jointly submit that from 8 November 2016 through to 7 May 2019, a period of about two and a-half years, the respondent was unable to obtain employment as a nurse as a consequence of the conditions placed upon his registration.
[13]	In June 2019 the respondent obtained employment as a nurse in Tasmania.  
[14]	The referral was filed in the Tribunal on 30 April 2019 and on 29 May 2019 the respondent filed a response in which he admitted that he had engaged in professional misconduct and accepted all the allegations particularised in the referral.  
[15]	The parties submit, and the Tribunal accepts, that the period of two and a-half years, during which the respondent was unable to obtain employment because of conditions placed upon his registration as a consequence of his conduct, should be regarded as a de facto suspension period to be taken into account when determining whether any further preclusion from practice is required by way of sanction.
[16]	The respondent’s dishonest conduct occurred over the course of four days.  It was opportunistic and unsophisticated and quickly discovered.  The respondent paid back the misappropriated funds three days after the conduct had been discovered and within seven days of the misappropriation of the funds.  It appears that the respondent’s conduct occurred while the respondent was suffering from an undiagnosed gambling addiction.  The respondent’s transfers of the funds occurred during a sustained period of gambling during which the respondent was uncharacteristically consuming alcohol to excess which further disinhibited him. The respondent has demonstrated insight and remorse with respect to his conduct and completed the professional boundaries course mentioned earlier.
[17]	The parties jointly submit that the protective purposes of sanction, including considerations of general deterrence, can be met by the imposition of a reprimand.  A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.  It is a matter of public record affecting the reputation of a practitioner until such time as the Board chooses to no longer publicly record it.
[18]	The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties, however the Tribunal ought not depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.  The Tribunal accepts that a reprimand is the appropriate order by way of sanction in this matter and that no further preclusion from practice is necessary to meet the protective purposes of sanction.
[19]	The parties jointly submit that the parties ought to bear their own costs and that will be reflected in the orders of the Tribunal.  
[20]	Accordingly, the Tribunal orders as follows:
1.	Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that 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.	Each party must bear the party’s own costs for the proceeding.