Gilhooley v Health Complaints Commissioner
[2021] VSC 232
•5 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03553
| BILLY GILHOOLEY | Plaintiff |
| v | |
| HEALTH COMPLAINTS COMMISSIONER | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 February 2021 |
DATE OF JUDGMENT: | 5 May 2021 |
CASE MAY BE CITED AS: | Gilhooley v Health Complaints Commissioner |
MEDIUM NEUTRAL CITATION: | [2021] VSC 232 |
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JUDICIAL REVIEW – Decision of Health Complaints Commissioner to investigate letter of complaint about general health service provider – Interaction between complainant and myotherapist on social media – Whether Commissioner has power to investigate – Whether letter a ‘complaint’ as defined in the Health Complaints Act 2016 (Vic) – Construction of ‘in providing or failing to provide a general health service’ in s 5 – Construction of ‘health education services’ in definition of ‘health service’ – Health Complaints Act 2016 (Vic), ss 3, 4, 5, 45.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R Kaye | Mills Oakley |
| For the Defendant | Mr B Jellis | Minter Ellison |
HER HONOUR:
Billy Gilhooley is a myotherapist and a ‘general health service provider’ for the purposes of the Health Complaints Act 2016 (Vic). In late June 2020, he engaged with a woman (DB) on social media, and exchanged messages with her on Instagram and Snapchat. She ended the conversation after a few days, and they did not meet in person. On 1 July 2020, DB made a complaint to the Health Complaints Commissioner about Mr Gilhooley, based on a number of his messages. She felt that he had used his position as a myotherapist to entice her to meet him for sex, and also that he had breached an interim prohibition order that he not offer massage therapy services to women or girls.
The Commissioner decided to investigate the complaint, under s 45 of the Act, and on 7 July 2020 she notified Mr Gilhooley of her decision and of the details of DB’s complaint. Mr Gilhooley responded, through his solicitors, to the effect that the messages were not exchanged in the context of him providing a health service to DB. He submitted that there was no ‘complaint’ for the purposes of the Act and that the Commissioner did not have power to investigate under s 45 of the Act. The Commissioner maintained that she was acting within her powers, and indicated that she intended to continue her investigation.
On 7 September 2020, Mr Gilhooley commenced this proceeding, seeking judicial review remedies in respect of the Commissioner’s decision to investigate the complaint by DB. He seeks an order in the nature of certiorari, quashing the decision to investigate; an order in the nature of prohibition and an injunction, restraining the Commissioner from further investigating the complaint; and a declaration that the investigation is beyond power. The hearing of the proceeding was expedited by the Court, in light of the Commissioner’s obligation to carry out investigations as expeditiously as is reasonably possible.[1]
[1]Health Complaints Act 2016 (Vic), s 59(2)(a).
For the reasons that follow, I have concluded that the Commissioner has power to investigate DB’s complaint under s 45 of the Act. The proceeding will be dismissed.
Relevant provisions
The main purposes of the Act include providing for a complaints process about health service provision and related matters.[2] Section 4 of the Act establishes a set of health service principles:
[2]Act, s 1(a).
For the purposes of this Act, the following principles are the health service principles—
(a) that a health service is able to be accessed;
(b) that a health service is safe and of high quality;
(c) that a health service is provided with appropriate care and attention;
(d) that a person seeking or being provided with a health service and the person’s carer are treated with respect, dignity and consideration;
(e) that adequate and clear information is provided about a health service in respect of the treatment, options and costs in a transparent manner;
(f) that an inclusive approach is applied in the making of decisions about a health service;
(g) that the privacy and confidentiality of health information and personal information is respected;
(h) that a health service provider makes provision for the person seeking or being provided with a health service to make comments or complaints and that those comments or complaints are addressed.
The Act establishes the office of Health Complaints Commissioner.[3] The Commissioner has a range of functions, including receiving complaints, determining how complaints should be dealt with in accordance with the Act, dealing with complaints in accordance with the Act, and conducting investigations under Part 4.[4]
[3]Act, ss 1(b), 110.
[4]Act, s 118(1)(b)–(e).
The Act is concerned with health service provision, and includes an expansive definition of ‘health service’:[5]
[5]Act, s 3(1) — definition of ‘health service’.
health service means the following services—
(a) an activity performed in relation to a person that is intended or claimed (expressly or otherwise) by the person or the provider of the service—
(i) to assess, predict, maintain or improve the person’s physical, mental or psychological health or status; or
(ii) to diagnose the person’s illness, injury or disability; or
(iii) to prevent or treat the person’s illness, injury or disability or suspected illness, injury or disability;
(b) a health related disability, palliative care or aged care service;
(c) a surgical or related service;
(d) the prescribing or dispensing of a drug or medicinal preparation;
(e) the prescribing or dispensing of an aid or piece of equipment for therapeutic use;
(f) health education services;
(g) therapeutic counselling and psychotherapeutic services;
(h) support services necessary to implement any services referred to in paragraphs (a) to (g);
(i) services—
(i) that are ancillary to any other services to which this definition applies; and
(ii) that affect or may affect persons who are receiving other services to which this definition applies;
(j) any other prescribed services;
Example
Examples of services to which paragraph (i) applies are laundry services, cleaning services and catering services.
The Act differentiates between a ‘health profession service’ and a ‘general health service’. A ‘health profession service’ is the practice of a health profession within the meaning of the Health Practitioner Regulation National Law.[6] A ‘general health service’ is a health service that is not a health profession service.[7] It was common ground that myotherapy is a general health service for the purposes of the Act.
[6]Act, s 3(1) — definitions of ‘health profession’, ‘health profession service’, and ‘National Law’.
[7]Act, s 3(1) — definition of ‘general health service’.
Part 4 of the Act commences with s 45, which provides:
Investigation of complaints by Commissioner
The Commissioner may conduct an investigation of a complaint made to the Commissioner, if the Commissioner reasonably believes that the complaint should be investigated and—
(a) the complaint is not suitable for a complaint resolution process; or
(b) a complaint resolution process dealing with the complaint has not been successful; or
(c) a health service provider who is a party to a complaint, without reasonable excuse, fails to participate in a complaint resolution process; or
(d) a health service provider who is a party to a complaint does not comply with—
(i) a request for more information under section 18; or
(ii) a notice requiring the health service provider to give a written response under section 35; or
(iii)a notice requiring the production of a document or other evidence under section 41; or
(e) a general health service provider has contravened a code of conduct applying to the general health service.
In addition, the Commissioner may investigate a matter referred by the Minister, in relation to any matter that could be the subject of a complaint under s 6.[8] The Commissioner may also initiate an investigation, in relation to any matter that a person would be able to make a complaint about under ss 5, 6 or 7.[9]
[8]Act, s 46.
[9]Act, s 47.
If the Commissioner decides to conduct an investigation, the Commissioner must give written notice of the investigation in accordance with s 49. The Commissioner has the investigatory powers set out in Pt 5 of the Act, including power to compel the production of documents and the attendance of witnesses at an investigation hearing.[10]
[10]Act, s 69.
During an investigation of a general health service provider under Pt 4, the Commissioner may make an interim prohibition order under Pt 8, Div 1, for up to 12 weeks. An interim prohibition order may prohibit the provider from providing all or part of the general health service being investigated, or impose conditions on the provision of all or part of the general health service being investigated.[11]
[11]Act, s 90.
After the Commissioner has conducted an investigation under Pt 4 into a possible contravention by a general health service provider of an applicable code of conduct, the Commissioner may make a prohibition order under Pt 8, Div 2, permanently or for a specified period. A prohibition order may prohibit the provider from providing all or part of the general health service, or impose conditions on the provision of the service by the provider.[12]
[12]Act, s 95.
The subject matter of an investigation under s 45 is a ‘complaint’, which is defined in s 3(1) to mean ‘a complaint made under section 5, 6 or 7’. Relevantly here, s 5 provides:
Complaint by person who received or sought a health service
(1) A person may make a complaint to a health service provider about—
(a) any unreasonable provision of a health service by the provider to the person; or
(b) any unreasonable failure by the provider to provide a health service to the person that the person has sought; or
(c)any unreasonable failure by the provider to act consistently with the health service principles in the provision of or a failure to provide a health service to the person; or
(d) the provision of a health service by the provider to the person in an unreasonable manner; or
(e) the manner in which a complaint by the person is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
(2) A person may make a complaint to the Commissioner about—
(a) anything to which a paragraph of subsection (1) applies, without making a complaint to the health service provider, if it would be unreasonable or inappropriate to resolve the matter by making a complaint under subsection (1); or
(b) any failure by a general health service provider in providing or failing to provide a general health service to the person—
(i) to comply or act consistently with a code of conduct applying to the general health service; or
(ii) to comply with an interim prohibition order; or
(iii) to comply with a prohibition order; or
(c) a matter that was the subject of a complaint by the person to a health service provider under subsection (1), if that complaint is not resolved within 3 months of making the complaint; or
(d) the manner in which a complaint by the person under subsection (1) is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
Section 6 provides for complaints about a health service received or sought by another person, and s 7 enables a complaint by a carer of a person.
Schedule 2 to the Act sets out the general code of conduct in respect of general health services.[13] Clause 1 of the Code requires a general health service provider to provide general health services in a safe and ethical manner. Relevantly here, cl 13 provides:
General health service providers not to engage in sexual misconduct
(1) A general health service provider must not engage in behaviour of a sexual or close personal nature with a client.
(2) A general health service provider must not engage in a sexual or other inappropriate close personal, physical or emotional relationship with a client.
(3) A general health service provider should ensure that a reasonable period of time has elapsed since the conclusion of the therapeutic relationship before engaging in a sexual relationship with a client.
[13]Act, s 154. The general code of conduct in Sch 2 applies until a general code of conduct in respect of general health services is prescribed by the regulations. The Health Complaints Regulations 2019 (Vic) do not prescribe any code of conduct.
Interim prohibition order
On 27 April 2020, the Commissioner made an interim prohibition order in relation to Mr Gilhooley, in the context of a separate and unrelated investigation. The order was to remain in force until 20 July 2020, while the investigation was conducted, unless revoked earlier.
The interim prohibition order was to the following effect:
1. The general health service provider named above must not, directly or indirectly:
• advertise or cause to be advertised, or
• offer or cause to be offered, or
• provide or cause to be provided, or
• establish, direct or otherwise operate any business that either advertises, offers or provides (or causes to be advertised, offered or provided)
any general health service (paid or otherwise, in a clinical or non-clinical capacity) that involves massage therapy services to any female member of the public.
2. The general health service provider named above must display a copy of this Interim Prohibition Order at their business premises and ensure that it is easily visible to the public.
3. The general health service provider named above must publish a copy of this Interim Prohibition Order on any website he uses to offer or promote any general health service that involves, or is in any way related to, massage therapy.
The order was published in the Victoria Government Gazette and on the Commissioner’s website. It was in force on 28, 29 and 30 June 2020, when the exchange of messages between Mr Gilhooley and DB took place.
Complaint by DB
On 1 July 2020, DB made the following written complaint to the Commissioner:
To whomever this may concern,
I am writing to you as I feel Billy Gilhooley has breached his Interim Probation order from 27 April 2020- 20 July 2020. This is specifically in regards to: “The general health service provider named above must not, directly or indirectly: advertise or cause to be advertised, or offer or cause to be offered, or provide or cause to be provided, or establish, direct or otherwise operate any business that either advertises, offers or provides (or causes to be advertised, offered or provided) any general health service (paid or otherwise, in a clinical or non-clinical capacity) that involves massage therapy services to any female member of the public.”
For reference, I am a 21 year old Female, studying Diploma of Remedial Massage at RMIT 2020.
I have included images via photo evidence submitted on a word document, alongside screenshots of all relevant conversations I have had with Billy to support my claim.
On Sunday the 28th of June 2020, I received a message from Billy on Instagram at 4:17pm. I have never had any previous contact with Billy or aware of who he is before Sunday.
I noticed immediately on his instagram he linked his Myotherapy clinic he works at and had images of him treating clients. I asked if he had consent from clients as I feel this would be a breach of code of conduct. We continued speaking later that evening, letting him know that I study remedial massage and almost immediately he propositioned me with teaching me “tricks of the trade”. I was obviously very interested as a current student; I wanted to make further industry connections for after I graduate.
As seen through various screenshots, he was willing to set up a time to teach me the following week (roughly 29th of June- 12th of July).
I tried my best to clarify to Billy that I was only interested in a more professional relationship as seen in attached screenshots- “I’m cool with just hanging out and see where sh*t leads, I’d love to learn from you too you seem chill” Sunday 28th June 2020
“Yo if you ever need anyone who needs someone to help around in a clinic environment I’d love to and I’m willing to travel for it too I would kill for the experience” Sunday 28th June 2020
“In the meantime you can help me with what makes me stand out and be a sick therapist” Sunday 28th June 2020
I could tell Billy was being flirtatious with me but, I ignored it and responded with “hahah cheeky” etc. brushing it off.
After this, we continued our conversation on Snapchat on Sunday the 28th of June 2020.
Billy was further asking when I would be home (as I was staying in the country at the time) with wanting to “lock it in” this weekend to meet for treatment/practise Billy-“how will we practise then” Sunday 28th June 2020.
I then clarified that last year I had pneumonia, (in reference to having to social distance- why I may not be able to visit him within the week) some of those messages were sent in a voice message form. (I am happy to send through the voice recordings of this as I can’t attach them.)
Billy then became crass toward me “No deep throat huh”, “thought that was going to be you gagging on something” (reference to voice message) “I meant my dream girl would be gagging” Sunday 28th June 2020.
The following day on Monday the 29th of June 2020 was the last interaction I had with Billy where I felt I needed to stop pursuing a professional relationship or otherwise as he continued to make more crass remarks making me feel severely uncomfortable. I felt during the conversations that he was abusing his power as a qualified Myotherapist by enticing me to meet him in order to learn from him; when in actuality it seemed he wanted to meet me for sex.
I felt as if I were to meet him, it could have ended badly as I may have been in a vulnerable state (unclothed while being treated), this is only skeptical as I never met with Billy but, why I felt so uncomfortable and brought this complaint forward.
For reference the reason I felt so uncomfortable during our conversation on Monday the 29th of June was because Billy was asking my thoughts on co-parenting 24 hours after his initial message to me. I clarified I was a decade younger than him and was not seeking a relationship of that sort. He then stated that “Actually your body is perfect for making babies” 29th of June 2020. As I was reluctant to have that relationship with him he continued to say “I’m not asking you” (to co-parent) when I asked him “Why’d you say my body is perfect for having kids then...” his response was “Lol, wide hips, curvy with big boobs” Monday 29th of June 2020.
I later ceased conversation with him as I felt very uncomfortable and as if this was not in fact going to be a professional relationship and was made aware of his Interim Probation Order to not offer or treat women (professional setting or otherwise) by a simple Google Search of his name.
I have included messages from Billy on Tuesday the 30th of [June] 2020 at 6:36pm where he is trying to clarify whether I am in a lockdown area (presumably as he wants to meet for treatment/practise of remedial massage). I did not respond and have blocked him from all social media accounts.
I am raising the following in regards to Billy:
Breaching Interim Probation order “...not offer or provide general health services (clinical or nonclinical capacity) that involves massage therapy service to any female member…”
Possible breach of privacy code of conduct in relation to consent from clients on social media
Propositioning me (a female entering the industry) in a context that would be an abuse of his power.
I write this complaint on Wednesday the 1st of July and state that all information in this complaint is true.
Attached to the complaint were screenshots of the conversations between Mr Gilhooley and DB. The first conversation took place on Instagram, on Sunday 28 June 2020:
BG:Hey I added you from pof[14]
[14]Plenty of Fish, a dating app.
You look so cute in that skirt
How’s it going?
[react][15]
[15]Instagram allows a user to ‘react’ to a message by double clicking on that message, which causes a small red heart emoji to appear just below the message.
DB:Hiiii! Thank you
BG: I just hope you’re real
DB:Hahah I’m very real but, have a question!
Why’re you taking photos of your clients on the table as you’re massaging, surely that goes against code of conduct
BG:It would if I didn’t have their consent lol
[react]
Do you work for HCC?
DB:Okay cool of course! I study remedial massage hahah
BG:Haha where!?
That’s kind of cool
We can massage each other
DB:Oh lord I’ve heard that one too many times, surely you knew it’s a terrible pick up line
BG:That’s not a pick up line
I’m a Myo. I’ll teach you a few tricks of the trade if you like
DB:I’m 100% in
[react]
I thought you were alluding to shit like most guys do once I tell them :”(
Oi follow back, plain rude
BG:Lol nooo
Where do you study?
DB:RMIT! It’s been a fucking shit show bc we can’t sit pracs
I hope I can graduate at the end of the year rip
BG:No bullshit I’ve just had an idea
DB:I’m all ears
BG:You need practice with remedial techniques right? I need a body to practice on
hmmm
DB:What do you mean? Like we both just practise on one another
BG:I have a portable table with everythingggg. I’ll teach you everything I know. Let’s get cracking
[react]
DB:Cause if we do I can smash out some assessments on you to upload for class bc my housemate goes out too often I can’t practise on her
Sadly that won’t count toward my placement hours tho
BG:Look on the bright side you’ll learn techniques no one else in your class knows
I actually love teaching massage
How long until I can get you working at the clinic I work at
[react]
DB:Hopefully done by the end of the year
I hope I can find a job bc I won’t have any extra shit to add to my resume bc of covid
I can’t find anywhere to help out even as admin
BG:Don’t stress if you’re good I’ll get you into my clinic
6-8 clients per day
DB:Aww you’re too sweet
BG:You’ve gotta be good
I really need a massage!
DB:Wll look my hands have gone to shit so you’ll be the judge of that hahahah
I will be straight out of uni with 0 experience in a clinic
BG:Like I said if you want to learn basic clinical skills I’ll teach you
DB:Of course, I wanna own and run my own business one day I love to learn from people as much as I can!
BG:How old are you?
DB:21!
BG:You’re still a baby
DB:
BG:I’m a decade older than you
…[16]
[16]There appears to be a gap in the messages at this point.
And a total babe
We should probably be friends now
DB:Works a treat while I study
Up to you lovely
I’m cool with just hanging out and see where shit leads, I’d love to learn from you too you seem chill
[react]
BG:Yeah I just always start from friends because that way things stay respectful
And obviously we hook up and be together then great
DB:Ambitious one you are
BG:Or friends who share massages, dinners and sex every now n then
[react]
Hahaha
…[17]
[17]There appears to be a gap in the messages at this point.
Well you won’t be for too long if you’re any good at massage
Focus on getting your provider numbers and if you’re good then I’ll get you in
[react]
DB:Yo if you ever need anyone who needs someone to help around in a clinic environment I’d love to and I’m willing to travel for it too I would kill for the experience
Okay we’ll see how I go!
In the meantime you can help me with what makes me stand out and be sick therapist
BG:I treat afl players only these days
Observe in those sessions
If and when we get to that
DB:Yeah I haven’t been in on many sessions other than me being the client
The conversation between Mr Gilhooley and DB continued later that day over Snapchat:
BG:Where you?
Cute dog though
DB:Aww he’s a cutie
BG:I meant your face lol
Where lol
You’re shy
You’re also ages away haha damn
DB:I am hehe
I’m coming home in a few days I haven’t seen my fam in months and months
BG:Hurry home please
DB:Cheeky! Might not be able to see you anyway and have to social distance since I’ve been around others
BG:How will we practice then?
Hm. If you’re shy to meet then that’s a problem
DB:Nah not shy to meet I got pneumonia last year so I’m high risk for getting sick and why I haven’t seen my fam in so long so I’ve gotta be a lil…
…[18]
[18]There appears to be a gap in the messages at this point.
BG:Why did you get pneumonia?
DB:Why? Idk my doctor said I came into contact with someone who got the flu and it festered in me as pneumonia and I thought it was asthma and almost died
Last year was a bit hectic for
Me
I’m all g but gotta be cautious and wash hands heaps
BG:It’s an infectious disease, usually with an underlying cause
Like a chronic lung condition
DB:I don’t smoke or anything I have no idea why I got it
I have a really shit immune system so I’m not surprised in the least
I get tonsillitis a lot
A few weeks ago I had an allergic reaction and had hives My body is a war zone
BG:No deep throat huh
Sounds like you’ll struggle to go to school anyway
And a clinic
Haha bless you
There is a gap in the text messages at this point. The context indicates that DB sent Mr Gilhooley a voice message, after which their text conversation continued:
BG:…thought that was going to be you gagging on something
Regardless still enjoyed listening
DB:Oh lord who do you think I am
BG:My dream girl?
Jks
DB:
BG:I meant my dream girl would be gagging
Never mind lol
DB:Hahahha righhhht
I’m with ya know
BG:So when we catching up?
DB:Now
BG:Just so we clear
DB:Next week or weekendish?
BG:That sounds good
Lock it in
I do want to see more of you
Mr Gilhooley and DB had another conversation the next day, 29 June 2020, on Snapchat:
BG:You up for a chat?
DB:Sure!
What’s up
BG:I need a female opinion
I’m
Considering co parenting
DB:Okay go on
Do you have a kid?
BG:No I wish hah
DB:What’s up
BG:From a female point of view
What kind of support would you need from a co parenting setup
DB:Idk what you mean
Like are you gonna get a random pregnant just to co-parent or what’s the deal
Like is there a kid already
BG:lol there’s no kid already
I’m considering it because I’m getting older and I really want to be a dad
You’re not in the mindset of having babies so
DB:Like depends on who you’re raising with I feel like you’d have to be really well bonded bc a kid is a lot ya know
BG:Yeah I know lol
DB:Because of schools that kinda thing
It could cause a lot of conflict unless you prepare before hand
With someone who’d want to with you!
BG:Actually your body
Is perfect for making babies
…[19]
[19]There appears to be a gap in the messages at this point.
DB:…with someone I don’t know
I want that traditional love kinda relationship
I wanna find my person first
Not co-parent just for a child I don’t even want yet hahaha
I’m sorry but I hope you’re able to find someone to do that with
BG:lol
Jesus relax
I’m not asking you
DB:Okay
why’d you say my body is perfect for having kids then rip
BG:Rip
Lol
Wide hips, curvy with big boobs
The final message received by DB from Mr Gilhooley was also sent via Snapchat on 30 June 2020:
BG:Welcome home
Are you on lockdown?
DB did not respond, and blocked Mr Gilhooley on all social media platforms.
The Commissioner prepared a formal description of DB’s complaint, as required by s 15 of the Act, which she provided to Mr Gilhooley. It summarised DB’s complaint as follows:
1. On 28 June 2020, Billy Gilhooley sent [DB] a message on Instagram. Prior to this, [DB] had never met or communicated with Mr Gilhooley.
2. [DB] noticed that Mr Gilhooley had a link to his place of employment on his Instagram profile and that he had posted images of himself treating clients.
3. [DB] disclosed to Mr Gilhooley that she was studying remedial massage and Mr Gilhooley said he would like to set up a time to teach her the following week. He said he had a portable massage table and that they could massage each other.
4. [DB] repeatedly clarified that she wanted the relationship to be professional to allow her to learn and get experience in a clinic environment. Mr Gilhooley continued to be flirtatious.
5. Mr Gilhooley then became increasingly unprofessional in his communication, making statements such as, ‘No deep throat, huh,’ and ‘My dream girl would be gagging.’
6. Other messages included statements such as:
•‘And obviously we hook up and be together then great;’
• ‘Or friends who share massages, dinners and sex every now n then;’ and
• ‘Actually your body is perfect for making babies ... Wide hips, curvy with big boobs.’
7. [DB] then blocked further communication from Mr Gilhooley.
8. [DB] considers that Mr Gilhooley was abusing his power and position as a massage therapist to proposition her for sex. She is also concerned that it appears Mr Gilhooley is breaching his current Interim Prohibition Order which prohibits him from offering massage services to a female person.
The Commissioner notified Mr Gilhooley that DB’s complaint raised concerns about ‘whether the general health services you offered to her complied with the Code and the potential risks that other persons may be exposed to if your services and processes are not Code compliant’. The Commissioner’s preliminary view was that clauses 1 and 13 of the Code[20] were relevant to the complaint. She also considered that the complaint appeared to indicate that Mr Gilhooley was in breach of the interim prohibition order that prohibited him from advertising, offering or providing general health services to female clients.
[20]See [16] above.
Mr Gilhooley’s submissions
Mr Gilhooley contended that there was no ‘complaint’ as defined in the Act, and so the Commissioner had no power under s 45 to investigate the matters raised by DB. This contention was put in two ways:
(a) The relevant parts of the definition of ‘complaint’ in s 5 of the Act involve a health service provider ‘providing or failing to provide’ a general health service. Mr Gilhooley’s social media interactions with DB did not involve him providing or failing to provide her with a general health service.
(b) Alternatively, even if a service was provided, he did not provide to DB a ‘health service’ as defined.
Mr Gilhooley emphasised that his interaction with DB was limited to messaging over social media. He described the interaction as ‘mostly flirtatious in tone’. He submitted that his offer to assist DB with ‘a few tricks of the trade’ and to help her practice remedial techniques did not amount to providing her with a service. Their arrangements to meet were vague and imprecise; they could not be taken as concrete plans. They never met in person, and no service was ever provided by him to DB.
He submitted that the words ‘failing to provide’ in s 5, read in context, refer to a situation where a service provider is under an obligation to provide a service and fails to do so. Since there was no obligation for him to provide a health service to DB, and no concrete arrangements were ever made for him to do so, he argued that there could have been no failure by him to provide a service. He relied on the definition of ‘fail’ in the Oxford Concise Dictionary, and submitted that the relevant meaning in this context was ‘neglect to do something, disappoint expectations’. DB’s complaint was not that Mr Gilhooley had disappointed her expectation that he would help her out with her studies; it was that he had tried to use his position as myotherapist to entice her to meet him for sex.
While Mr Gilhooley maintained that the plain meaning of the text of s 5 was clear, he also relied on the principle that penal provisions should be interpreted strictly. He pointed out that an investigation of a general health services provider by the Commissioner can result in a range of penal consequences, including publication of a public health warning statement[21] and making an order prohibiting the provider from providing health services, temporarily or permanently.[22] He referred to Rich v Australian Securities and Investment Commission,[23] in which the High Court observed that a proceeding may bear several different characters that are not mutually exclusive. On that basis, he submitted that s 5 should be characterised as a penal provision, acknowledging that it also has a protective purpose.
[21]Act, s 84.
[22]Act, Pt 8, Div 1 — Interim prohibition orders; Div 2 — Prohibition orders.
[23](2004) 220 CLR 129, [35] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
Next, Mr Gilhooley submitted that, even if he had provided or failed to provide something to DB, it could not be characterised as a ‘health service’ or a ‘general health service’ for the purposes of the Act. While he accepted that myotherapy is a general health service, he argued that the complaint did not concern ‘an activity performed in relation to a person that is intended or claimed (expressly or otherwise)’ by him or DB to maintain or improve her health, or to diagnose, prevent, or treat any illness, injury, or disability.[24] Nor was it about the provision of or failure to provide ‘health education services’, which was more confined than educational activities.[25] He emphasised the informal social context in which the messages were exchanged, and compared it with the degree of formality connoted by the word ‘service’.
[24]Paragraph (a) of the definition of ‘health service’; set out at [7] above.
[25]Paragraph (f) of the definition of ‘health service’, set out at [7] above.
Anticipating the Commissioner’s submission that it would be a perverse construction of the Act that did not permit the Commissioner to investigate DB’s complaint, Mr Gilhooley referred me to authorities to the effect that it is no part of the judicial function to fill gaps left by the legislature.[26] He further submitted that there was no gap to be filled here — the legislature has simply the Commissioner’s powers of investigation.[27]
[26]Marshall v Watson (1972) 124 CLR 640, 649 (Stephen J); Ganter v Whalland (2001) 54 NSWLR 122, [36].
[27]Citing Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511, 519 (Black CJ and Sundberg J).
Commissioner’s submissions
The Commissioner submitted that Mr Gilhooley’s claim for relief should be rejected for two reasons:
(a) First, in arguing that the complaint does not concern a ‘general health service’, Mr Gilhooley had relied upon an artificial and selective reading of the facts; and
(b) Second, in submitting that the complaint was not about ‘providing or failing to provide a general health service’, Mr Gilhooley had misconstrued the Act.
As to the first, the Commissioner pointed out that Mr Gilhooley’s text messages to DB included an offer to provide remedial massage, which was in itself an offer of a general health service. In addition, he offered to teach her massage techniques, to arrange vocational employment, and to allow her to learn by observing him in a clinical context. Reading the text messages fairly and as a whole, there was ‘a series of offers or invitations to provide teaching and other practical learning opportunities to an enthusiastic, but ultimately disappointed, young woman’.[28] The Commissioner submitted that this amounted to an offer by Mr Gilhooley to provide health education services to DB.
[28]Outline of submissions of the defendant dated 18 December 2020, [35].
As to the second, the Commissioner acknowledged that DB did not, ultimately, receive any treatment or education from Mr Gilhooley, but argued that was because she cut off all contact with him after he made sexually harassing statements to her during their text conversation. The Commissioner submitted that this engaged s 5(2)(b) of the Act in two senses:
(a) First, conduct in providing or failing to provide a general health service is not confined to the specific moment that the service is provided. The use of the inclusive word ‘in’ extends paragraph (b) of s 5(2) to things incidental to the provision of the service.
(b) Second, the words ‘failing to provide’ cannot be disconnected from the balance of s 5(2)(b). In context, those words are intended to ensure that conduct that is in contravention of the code of conduct or a prohibition order may be the subject of a complaint, whether or not the service is ultimately provided. The words of paragraph (b) do not require the service provider to be under any obligation to provide the services, or that the service be provided in exchange for payment. The words cover a situation where a person seeks out a health service provider and arranges to receive a health service, but does not go ahead with the arrangement because of some objectionable conduct by the provider.
The Commissioner emphasised the need to pay close attention to what was said in DB’s complaint. The essence of her complaint was that Mr Gilhooley had used the fact that he was a qualified myotherapist to entice her to meet him to learn from him, when he actually wanted to meet her for sex; he ‘continued to make crass remarks’, which made her feel uncomfortable, so that she felt she needed to stop pursuing a professional relationship with him. Whether this was a reasonable interpretation of the text conversation is not to the point at the preliminary stage of determining whether the complaint is one that the Commissioner can investigate under the Act.
The Commissioner rejected the suggestion that the Act is a penal statute. She submitted that it has an avowedly protective purpose, and should be construed so as to give effect to that purpose. She disavowed any contention that words should be read in to s 5(2)(b) or the definition of ‘health service’. Rather, her submission was that there are constructional choices available, and that a construction that would better serve the protective purpose of the Act should be preferred. Those constructional choices are:
(a) First, whether to interpret ‘health education services’ narrowly, so as to require some accreditation of the provider, or some formality about the mode of instruction, or more broadly, so as to encompass both formal and informal arrangements for imparting knowledge; and
(b) Second, whether conduct ‘in providing or failing to provide a general health service’ in s 5(2)(b) should be understood as extending to matters incidental to the provision of the relevant health service, such as offering and arranging to provide the service, or in a more confined way, focusing on the actual treatment or other health service that is (or is not) provided.
The Commissioner submitted that, in both cases, the broader construction would promote the Act’s protective purpose. Specifically in this case, it would enable the Commissioner to investigate whether Mr Gilhooley had breached the interim prohibition order, which was made for a protective purpose as required by s 91 of Act. On the other hand, the narrower construction would undermine the protective purpose of the Act, and would substantially disarm an interim prohibition order that stops a provider from offering specified services to a specified group.
The Commissioner relied on some contextual matters in aid of her preferred construction. She pointed out that the heading to s 5 of the Act is ‘Complaint by person who received or sought a health service’, and submitted that this supported reading s 5 as extending to conduct preliminary to the actual provision of a service.[29] She referred to various provisions of the Code that prohibit general service providers from misrepresenting their competence, the services they provide, or their efficacy.[30]
[29]Relying on s 36(2A) of the Interpretation of Legislation Act 1984 (Vic).
[30]Act, Sch 2, cll 8, 9.
In oral submissions, the Commissioner made the point that the fact that Mr Gilhooley and DB communicated using social media should not obscure the substance of their interaction. She argued that what occurred in this case was really no different to a student speaking to a health professional about work experience, being offered a chance to get some experience in the profession, and then ‘feeling [as] if they’re being chased out of it by being sexually propositioned’.[31] She submitted that this was the essence of DB’s complaint, in contrast with Mr Gilhooley’s characterisation of their interaction as no more than a flirtation.
[31]Transcript 52:14–15.
Consideration
I accept that the Commissioner’s jurisdiction to conduct an investigation under s 45 of the Act depends upon the existence of a ‘complaint’, as defined in the Act.[32] The Commissioner did not contend otherwise. An investigation under s 45 may only take place where, as a matter of objective jurisdictional fact, the Commissioner has received a ‘complaint’ made under ss 5, 6 or 7. It was common ground that the Commissioner only had jurisdiction to investigate DB’s complaint if it was a ‘complaint’ within s 5 of the Act.
[32]See Shalom v Health Services Commissioner (2009) 32 VAR 97, [30], in relation to the former Health Services (Conciliation and Review) Act 1987 (Vic).
Construction — text, context, purpose
There was little dispute about the applicable principles of statutory construction. Both parties emphasised that the exercise begins and ends with the text of the relevant statute, and the ordinary grammatical meaning of the words used by the legislature.[33] They agreed that there are limited circumstances in which words may be read in to a provision: it may be done to correct simple, grammatical, drafting errors that would defeat the object of the provision; it may not be done in order to fill gaps in legislation.[34]
[33]Mr Gilhooley referred me to JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297, [50]–[51] (Flick J) and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, [47]. The Commissioner relied on Alcan, [47] and Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39].
[34]Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [38] (French CJ, Crennan and Bell JJ).
In addition, words take some of their meaning from the context in which they appear. It is a settled principle of statutory construction that the meaning of the text of a provision is to be discerned by considering the text in its context, including the whole statute in which the provision is located, legislative history, extrinsic materials, the purpose and policy of the provision, and the mischief it is designed to remedy.[35]
[35]See e.g. Alcan, [47]; Consolidated Media Holdings, [39].
There are several contextual indications in the Act that support reading s 5, including the words ‘in providing or failing to provide a general health service’ in s 5(2)(b), as including matters incidental to the provision of a health service:
(a) First, s 5 is headed ‘Complaint by a person who received or sought a health service’. The heading forms part of the Act,[36] and indicates that s 5 extends to conduct preliminary to the actual provision of a health service.
(b) Second, the health service principles set out in s 4 cover incidental and preliminary matters. The first principle is that a health service is able to be accessed.[37] The principles also require that ‘adequate and clear information is provided about a health service’,[38] and provide that ‘a person seeking or being provided with a health service’ is to be treated with ‘respect, dignity and consideration’, and should be able to make comments or complaints.[39] Section 5(1)(c) contemplates a complaint about a failure by a provider to act consistently with the health services principles ‘in the provision of or a failure to provide a health service’. This must necessarily include a failure to act consistently with the principles in relation to a person seeking a service, whether or not the service is provided.
(c) Third, the Code covers incidental and preliminary matters. Clause 2 requires health service providers to obtain appropriate consent prior to commencing a treatment or service. General health service providers must not misrepresent the products or services they provide, or their qualifications, training, or professional affiliations.[40] They must ensure that appropriate indemnity insurance is in place, and are required to make the Code and certain other information available ‘when providing or offering to provide a general health service’.[41] Section 5(2)(b)(i) provides for complaints about a provider’s failure to comply or act consistently with the Code. It would be a strange result if a complaint that a provider had not obtained consent, had misrepresented their services or qualifications, or had no indemnity insurance in place, could only be made by a person who went ahead and received a service from that provider.
[36]Interpretation of Legislation Act 1984 (Vic), s 36(2A).
[37]Act, s 4(a).
[38]Act, s 4(e).
[39]Act, s 4(d) and (h).
[40]Act, Sch 2, cll 8, 9.
[41]Act, Sch 2, cll 16, 17.
The Commissioner also relied on the principles that a construction that would promote the purpose or object underlying a statute is to be preferred to one that would not,[42] and that legislation with a protective purpose should generally be given a beneficial interpretation.[43] I accept that those principles should be applied in construing the Act, and reject Mr Gilhooley’s submission that the Act should be interpreted on the basis that it is a penal statute.
[42]Interpretation of Legislation Act 1984 (Vic), s 35(a).
[43]Waugh v Kippen(1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ).
It is the case that the Act contains some penal provisions, in particular ss 93 and 98, which make it an offence to contravene an interim prohibition order and a prohibition order respectively. Mr Gilhooley argued that a number of other provisions are penal, including s 84, which enables the Commissioner to publish a public health warning statement, and ss 90 and 95, which give her power to make interim prohibition orders and prohibition orders. Those provisions that do not involve criminal sanctions might more aptly be characterised as regulatory powers rather than penal provisions. Regardless, they appear within a statute which is plainly legislation for the protection of the public. In that context, the principle that protective legislation is to be construed beneficially generally prevails over the rule requiring strict interpretation of penal statutes.[44]
[44]Waugh v Kippen, 164–5 (Gibbs CJ, Mason, Wilson and Dawson JJ); R v ACR Roofing Pty Ltd (2004) 11 VR 187, [43] (Nettle JA).
It is not to the point that a proceeding for an offence against the Act,[45] or seeking review of a prohibitory order imposed by the Commissioner,[46] might be characterised as both protective and penal. The issue in Rich v Australian Securities and Investment Commission[47] was whether discovery orders should be made against the appellants in proceedings brought to disqualify them as company directors. The case concerned the application of privilege against exposure to a civil penalty, rather than statutory construction.
[45]Act, s 156A.
[46]Act, s 101.
[47](2004) 220 CLR 129, [30]–[38] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
On that basis, I consider that the Act should be interpreted beneficially, so as to give the fullest effect to the legislature’s evident purpose of establishing processes for dealing with complaints about health service provision that is unreasonable or inconsistent with the health service principles.[48] Any doubt that the Act has a protective purpose is removed by the Minister’s second reading speech:[49]
[48]Act, ss 1, 4, 5–7, 118. See also the Minister’s second reading speech for the Health Complaints Bill 2016 in Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2016, 98, 100 (Ms Hennessy, Minister for Health).
[49]Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2016, 100 (Ms Hennessy, Minister for Health).
Protecting the public
In addition to these quality improvement mechanisms, this bill has a strong emphasis on protecting the public.
In particular, it will fill an existing regulatory gap in relation to health service providers who are not among the 14 professions registered under the Health Practitioner Regulation National Law (Victoria). These unregistered health service providers are not subject to the same regulatory controls or sanctions as registered practitioners. Under the act as it currently stands, there is no capacity for the health services commissioner, or any other authority, to prevent incompetent, unethical or unscrupulous unregistered health service providers from practising.
The bill introduces a statutory code of conduct for unregistered health service providers; new powers for the commissioner to investigate breaches of this code; and a capacity to prohibit, or place conditions on the practice, of an unregistered service provider. Complementary provisions provide a capacity to warn the public and to recognise similar orders made in other Australian jurisdictions so that the person cannot practice in Victoria.
…
Victorians have the right to expect a basic minimum standard of conduct and competence of anyone from whom they seek a health service. This bill will provide the necessary means to intervene to stop individuals who through a lack of skills, incompetence, negligence, impairment or criminal intent, cause real harm to those who put their trust in them.
The protective purpose of the Act will be more fully achieved if the words ‘in providing or failing to provide’ in s 5(2)(b) are understood as extending to matters incidental to the provision of a health service, such as advertising or offering the service, answering inquiries, and discussing when and where the service might be provided. A general health service provider does those things ‘in providing or failing to provide’ a health service, even if no appointment is made and the health service is not ultimately provided. This interpretation of the Act is supported by the contextual matters already discussed.[50]
[50]See [45] above.
Similarly, it gives effect to the protective purpose of the Act to interpret ‘health education service’ as including both formal and informal means of imparting knowledge. On that basis, an informal teaching or work experience arrangement is a ‘health education service’, just as much as teaching a class of fee-paying university students.
Was there a ‘complaint’ under the Act?
While the parties gave a good deal of attention to the evidence provided by DB in support of her complaint, they both accepted that the Commissioner’s jurisdiction to investigate under s 45 depends on DB’s complaint falling within s 5. The starting point must therefore be the letter of complaint of 1 July 2020, and what DB complains about in that letter.
The full text of the letter of complaint is set out at [20] above. The following matters are significant:
(a) DB introduces herself as a ’21 year old Female, studying Diploma of Remedial Massage at RMIT’.
(b) She says that, on receiving an Instagram message from Mr Gilhooley, she noticed immediately that his Instagram profile was linked to the myotherapy clinic he works at, and had images of him treating clients. She let him know that she was studying remedial massage, and almost immediately he propositioned her with teaching her ‘tricks of the trade’.
(c) DB says ‘I was obviously very interested as a current student; I wanted to make further industry connections for after I graduate’. She notes that Mr Gilhooley was willing to set up a time to teach her the following week.
(d) The letter goes on to highlight DB’s interest in establishing a professional relationship with Mr Gilhooley, despite her awareness that he was being flirtatious. She tried to clarify that her interest was professional, and that she wanted to learn from him, until a number of ‘crass remarks’ made by Mr Gilhooley made her severely uncomfortable, and she ceased the conversation.
(e) She explains that she felt during the conversations that Mr Gilhooley was ‘abusing his power as a qualified Myotherapist by enticing me to meet him in order to learn from him; when in actuality it seemed he wanted to meet me for sex’.
(f) She later became aware of the interim prohibition order, by a Google search of his name. She felt that he had breached the order by offering massage therapy services to her.
(g) Her primary complaint is that Mr Gilhooley propositioned her, a female entering the industry, in a context that was an abuse of his power.
I reject Mr Gilhooley’s attempts to minimise the complaint as concerning no more than a flirtatious exchange of private messages on social media. The complaint is a substantial one, related to Mr Gilhooley’s behaviour as a myotherapist. It is about his offer to teach massage and provide experience to a student who was keen to make industry connections, followed by a number of crude sexual comments that caused her to break off contact with him.
In my view, DB’s letter of complaint is a complaint within the meaning of s 5 of the Act. It concerns the conduct of Mr Gilhooley ‘in providing or failing to provide’ a health service, in offering and seeking to make arrangements to massage DB and to teach her remedial massage techniques and skills. DB’s complaint is a complaint within, at least, s 5(2)(b) of the Act. It may also be a complaint to the Commissioner under s 5(2)(a), about a matter that could have been the subject of a complaint under s 5(1)(c), concerning an unreasonable failure by Mr Gilhooley to act consistently with the health service principle that a person seeking a health service is to be treated with respect, dignity and consideration.[51]
[51]Act, s 4(d).
Disposition
The proceeding must be dismissed. I will hear the parties on the question of the costs of the proceeding.
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