Health Ombudsman v Atkins

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Atkins [2025] QCAT 427

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MALCOLM THOMAS JAMES ATKINS

(respondent)

APPLICATION NO/S:

OCR352-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 September 2025 (decision)

28 October 2025 (reasons)

HEARING DATE:

17 September 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Dr R Bailey
Ms R Bensted

Dr D Dane

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.     Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.

2.     Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.

3.     Pursuant to section 107(3)(e) of the HO Act, the respondent’s registration is cancelled.

4.     Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of twenty months.

5.     Pursuant to section 107(4)(b)(i) of the HO Act, the respondent is prohibited from providing any health services until such time as the respondent obtains registration as a health practitioner under the Health Practitioner Regulations National Law (Queensland) or a corresponding law of a State o Territory of Australia.

6.     There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – CHIROPRACTORS – where the respondent has breached professional boundaries by entering into and maintaining an inappropriate personal relationship with a patient – where the respondent has financially exploited the patient – where the respondent failed to keep adequate records regarding the care of the patient – where the parties reached an agreed position as to the characterisation of the conduct as professional misconduct – whether the respondent’s registration should be suspended for a period or cancelled

Health Ombudsman Act 2013 (Qld) s 103

Health Practitioner Regulation National Law (Queensland) s 5
Legal Practitioners Act 1981 (SA)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Chiropractic Board of Australia v PLE (Review and Regulation) [2024] VCAT 1014

Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167
Health Ombudsman v KGY [2024] QCAT 337

Nursing and Midwifery Board of Australia v Cherian (Review and Regulation) [2021] VCAT 1480

APPEARANCES &REPRESENTATION:

Applicant:

M Price, Legal Officer of the Office of the Health Ombudsman

Respondent:

J Liddle instructed by Meridan Lawyers

REASONS FOR DECISION

This matter has been brought by the Director of Proceedings on behalf of the Health Ombudsman against Malcolm Thomas James Atkins. The respondent has been registered as a chiropractor since 14 July 2004. He obtained a Bachelor of Applied Science (Clinical Science) and a Bachelor of Chiropractic Science in 2004. He is presently 52 years old.
The respondent is referred to the Tribunal for having breached professional boundaries by entering into and maintaining an inappropriate personal relationship with an elderly patient (‘patient’), and by doing so, financially exploiting her. In addition, it is alleged the respondent failed to keep adequate records regarding his care of this patient.
The facts and circumstances of the referral have been agreed between the parties and set out in the Statement of Agreed and Disputed Facts (‘SADF’). Accordingly, there are no facts in dispute and the parties have agreed the respondent's conduct constitutes professional misconduct.
The facts are summarised as follows:[1]
(a)The respondent had a clinical relationship with the patient from 7 December 2015 until May 2020.
(b)Over that approximate four and a half years, the respondent entered into and maintained an inappropriate personal relationship with the patient, during which he socialised with the patient and, by accepting gifts of accommodation and money from her, financially exploited the patient.
(c)On a number of occasions, the patient gave the respondent significant sums of money, totalling $182,000.
(d)The patient was 85 to 89 years of age at the time the respondent violated professional boundaries in relation to the patient.
[1]Applicant’s Submissions, filed in the Tribunal 4 November 2024, 3 [12] (‘Applicant’s Submissions’).
Over the same period, the respondent failed to keep adequate records regarding his care for the patient:[2]
(a)His treatment notes for the patient were incomplete, insufficient, and occasionally illegible.
(b)The respondent's records regarding his care for the patient did not disclose, or did not adequately disclose, various important information, including details of his initial consultation with the patient or her progress.
[2]Ibid [13].
After the complaint was received by the Office of the Health Ombudsman on 23 August 2021 and following investigation and referral to the Director of Proceedings for consideration pursuant to s 103 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), on 23 December 2022, the applicant referred the matter to the Tribunal.
The only issue to be determined by the Tribunal is whether the respondent's registration should be suspended for a period or cancelled.
The applicant seeks that the respondent's registration be cancelled and that the respondent is disqualified from applying for registration as a registered health practitioner for a period of two years.
The respondent submits that in the interests of avoiding an unnecessary punitive effect to Mr Atkins, his registration should be suspended for a period slightly less than two years, namely 20 months.
In respect of characterisation of the conduct, the Tribunal notes that the parties agree the conduct amounts to professional misconduct as defined by s 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).[3]
[3]Ibid [19].
The Tribunal has given consideration to the facts as set out in the SADF and is satisfied that the conduct amounts to professional misconduct as set out in s 5 of the National Law. Professional misconduct as defined in s 5 includes:[4]
Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
[4]Health Practitioner Regulation National Law (Queensland) s 5(a).
The Tribunal has had regard to the meaning of ‘substantial’ as considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 in the context of the Legal Practitioners Act 1981 (SA), which stated that:[5]
it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, “substantial" connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.
[5]Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167, [110].
The Tribunal has also had regard to the Australian Health Practitioner Regulation Agency (‘Ahpra’) Code of Conduct which states:[6]
Practitioners must be ethical and trustworthy. Patients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on practitioners to protect their confidentiality.
[6]Australian Health Practitioner Regulation Agency and National Boards, Code of Conduct (at June 2022) ‘Professional Values and Qualities’ [c].
The Tribunal notes the relevant features of the boundary violations as set out in the applicant’s submissions as follows:[7]
[7]Applicant’s Submissions, 6 [38] (citations in original).
(a)      The serious nature of the boundary violation, such as:
(i)The vulnerability of the patient, given her age and medical history, and the power imbalance between her and the Respondent;
(ii)The exploitative nature of the relationship, which the patient must have believed was one of genuine friendship;
(iii)The duration of the inappropriate personal relationship (being approximately four and a half years);
(iv)The significant sum of money expended by the patient on the Respondent and his family over that period;
(v)The Respondent’s repeated acceptance of very large sums of money, ranging from $7,000 to $100,000, and totalling $182,000;
(vi)The Respondent’s repeated acceptance of the extra payments and the various small gifts to his family;
(vii)The intimacy involved in the boundary violation, including involving the patient in dinners, the Respondent’s family holidays, and permitting the patient to give gifts to his family; and
(b)      The apparent motivation for the Respondent’s conduct would appear to be his own financial benefit; and
(c)      The Respondent did not desist of his own accord. He failed to terminate the treating relationship with the patient, despite the clear conflict of interest. Rather, it was the patient who ceased the treating relationship.[8]
[8]Statement of Agreed and Disputed Facts, filed in the Tribunal 19 September 2024, 3 [17] (‘Statement of Agreed and Disputed Facts’).
The Tribunal is satisfied that the respondent's exploitative conduct is inconsistent with his being a fit and proper person to hold registration in the profession. In this regard, the Tribunal notes the submission in subparagraph 45(a) of the applicant’s submissions that ‘The boundary violation should not be characterised as a mere error of judgement’. The conduct is intrinsically serious and cannot be viewed as an isolated episode. The Tribunal accepts that the respondent's motivation appears to be his own financial benefit.
In respect of the allegation regarding inadequate record keeping, the Tribunal notes the submission made in the matter of Chiropractic Board of Australia v PLE (Review and Regulation) [2024] VCAT 1014 (‘PLE’) at [31] that inadequate record keeping is serious because poor and inadequate notetaking can pose a risk to patients. Further, the Tribunal notes the following from the decision of PLE that:[9]
in the event that another practitioner assumes care of the patient, it is important that there be detailed notes to provide an overview for the new practitioner in relation to treatment already provided, to ensure that appropriate steps are taken in providing continuing care. … Good care includes formulating and implementing a reasonable management plan and maintaining adequate records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management details in a form that can be understood by other health practitioners.
[9]Chiropractic Board of Australia v PLE (Review and Regulation) [2024] VCAT 1014, [31].
The Tribunal also notes that in respect of health records, the Chiropractic Board of Australia Code of Conduct provides that:[10]
Maintaining clear, appropriate and accurate health records is essential for the continuing good care of patients. Chiropractors should be aware of relevant State and Territory legislation in relation to health records management. Good practice involves:
a) keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management
…
d) ensuring that records contain sufficient information to allow another chiropractor to continue the management of the patient and to facilitate continuity of chiropractic care
[10]Chiropractic Board of Australia, Code of Conduct for Chiropractors (at June 2022) r 9.4.
Dr Christopher Scott Burrell, registered chiropractor, provided his opinion in respect of allegation three against the respondent. Dr Burrell opined that the respondent not only fell below the expected standard but fell significantly below that standard.[11]
[11]Affidavit of Christopher Scott Burrell, affirmed 25 June 2024, Exhibit CSB-03, 11 [3(c)].
Dr Burrell described the subpar quality of the clinical records as a significant issue:[12]
This deficiency is likely to impede Dr Atkins delivery of high-quality care to his patient as it is unreasonable for Dr Atkins to rely on his memory alone from visit to visit. Moreover, this deficiency could potentially disrupt the continuity of chiropractic treatment for the patient. Specifically, if the professional relationship with Dr Malcolm Atkins were to end, yet the patient wishes to continue receiving chiropractic care, the lack of comprehensive records would pose a challenge. This is a failure of a fundamental obligation that Dr Atkins has to his patients.
[12]Ibid [3(d)].
For these reasons, the applicant seeks the cancellation of the respondent's registration.

General Principles

The Tribunal acknowledges the imposition of sanction includes the principle that the Tribunal’s jurisdiction is essentially protective, not punitive. For the paramountcy of the health and safety of the public, personal deterrence, general deterrence and the maintenance of both professional standards and public confidence must be taken into account in assessing the ongoing risk posed by the practitioner. An assessment of this risk must also include:
(a)an assessment of the degree to which the practitioner has developed insight into his conduct;
(b)evidence of rehabilitation; and
(c)other matters that may be regarded as aggravating or mitigating circumstances.
It is agreed between the parties that for the Tribunal to cancel the respondent's registration, the Tribunal must be satisfied the respondent is not a fit proper person to be registered as a chiropractor as at the date of the hearing.
The Tribunal has had regard to the decision of Nursing and Midwifery Board of Australia v Cherian (Review and Regulation) [2021] VCAT 1480, in which it was noted at [60] that:
Cancellation of registration involves a finding that, at the time of the determinations, the practitioner is not suitable for registration, and that if the practitioner seeks to return to the profession, he or she must re-apply. In contrast with suspension, which assumes suitability at the end of the period of suspension, cancellation sends a clear message of unsuitability to practise by reference to the impugned conduct …

Respondent’s Submissions

The respondent submits, and the Tribunal accepts, that if the respondent is out of practice for more than two years, he will no longer satisfy the requirements of the registration standard in order to be eligible for registration. The respondent submits that this would mean he would need to be supervised for a period. It is submitted that this will likely be very difficult given the public findings that will be made against the respondent. The respondent notes that the Tribunal should have regard to the respondent's expressions of remorse, as set out in his affidavit, as well as his conduct, including that he offered to make repayment of the monies in as early as 2020, and his admissions in these proceedings. It is noted that substantial repayments to the detriment of the respondent's financial circumstances have been made. It is submitted that the Tribunal should accept that the respondent:
(a)has reformed his character;
(b)is very unlikely to engage in any further misconduct; and
(c)is currently a fit and proper person and should be presumed fit to resume practice at the end the imposed period out of practice.
It is submitted that given the respondent’s age, limited other qualifications and work experience, and financial circumstances, the period out of practice will cause him real hardship. It is submitted that should be taken into account in determining the length of any suspension or disqualification. The respondent submits that to avoid unnecessary punitive effect to the respondent, the time out of practice should be less than two years. It should be noted the applicant submitted that it considered a period of 20 months, as submitted by the respondent, was within the appropriate range of sanction which could be imposed on the respondent.

Discussion and Decision

The Tribunal does not accept the respondent's submission that the passage of time or delay between the conduct and the date of hearing is a relevant consideration. In this regard, the Tribunal notes the decision in Health Ombudsman v KGY [2024] QCAT 337 that:[13]
[25]The overriding concern of these proceedings in any sanction imposed to protect the public. Of itself, delay does not ameliorate that concern. Indeed, it may exacerbate it. However, delay can have a mitigating effect where the imposition of any particular sanction causes demonstrable injustice.
[26]... punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect of them. Significant delay can produce a result whose effect is to impose a greater punishment or detriment on a practitioner than those in like circumstances. Delay can also have an effect in mitigation because what might otherwise be future intentions as to rehabilitation and change can now be seen to have been matched by actions and effects …
[13]Health Ombudsman v KGY [2024] QCAT 337, [25]-[26] (citations omitted).
The Tribunal accepts the submission that, in this case, the delay has operated to the respondent's advantage, as by 2022 the respondent had agreed to repay the patient's family the amount of $182,000 and had repaid a significant portion of that sum.[14] The Tribunal notes the report provided by the respondent from psychologist, David McLennan, dated 15 August 2025, which states:
I confirm that Mr. Malcolm Atkins is currently attending psychological therapy with me to address professional boundary issues, including matters related to dual relationships, as identified under AHPRA requirements.
Mr. Atkins has engaged willingly in this process and is participating in sessions with the intention of supporting his professional rehabilitation.
[14]Statement of Agreed and Disputed Facts, 9 [62].
The Tribunal notes that this report is recent and has been made a substantial time after the respondent's conduct was referred to the Tribunal in December 2022. The Tribunal is satisfied the respondent has shown only a limited degree of insight and remorse for his conduct. Over the intervening years, he has only more recently sought medical assistance for his actions and has not undertaken any steps in relation to gaining an appropriate understanding of his ethical obligations by undertaking any training or education relevant to his conduct.
Clearly, in this case, there is an important need to consider specific and general deterrence. While specific deterrence is important in respect of the practitioner, the Tribunal considers that general deterrence, condemning the behaviour undertaken by the respondent, is extremely important. The Tribunal does not consider this would be met by suspension of the respondent's registration in this case.
In order to maintain both professional standards and public confidence in the profession, the Tribunal considers that the appropriate sanction is cancellation in this case. However, given the applicant's concession in respect of the range for the period of cancellation, the Tribunal is satisfied that a cancellation for 20 months would be appropriate and would meet the aims and objectives of the HO Act.

In addition, the applicant seeks a prohibition order pursuant to section 107(4)(b)(i) of the HO Act. The respondent does not oppose the making of the prohibition order and the proposal for it to run concurrently alongside the period during which the respondent is out of practice.

Orders

In all the circumstances, the Tribunal's orders are as follows:
Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
Pursuant to section 107(3)(e) of the HO Act, the respondent's registration is cancelled.
Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of twenty months.
Pursuant to section 107(4)(b)(i) of the HO Act, the respondent is prohibited from providing any health services until such time as the respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of a State or Territory of Australia.
There be no order as to costs.

[2025] QCAT 427

17 September 2025 (decision) 28 October 2025 (reasons)