Health Ombudsman v Chang - [2022] QCAT 58

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Chang [2022] QCAT 58

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MIN-HSUN CHANG

(respondent)

APPLICATION NO/S:

OCR387-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 March 2022

HEARING DATE:

4 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
M Crain,
M Macdonald,
C Narayan

ORDERS:

1.     The respondent has behaved in a way that constituted professional misconduct, as particularised in Allegation 1 in the referral.

2.     The respondent has behaved in a way that constituted unprofessional conduct, as particularised in Allegation 2 in the referral.

3.     The respondent is reprimanded.

4.     The respondent is disqualified from applying for registration as a health practitioner for five years from the date of this order.

5.     The interim prohibition order issued by the applicant on 26 September 2019 is set aside under the Health Ombudsman Act 2013 (Qld) s 73(2)(a)(ii).

6.     The respondent is prohibited from providing any health service until he obtains registration as a health practitioner.

7.     The parties are to bear their own costs of the referral.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – Chinese Medicine Practitioner – allegation of sexual assault on patient – whether allegation proved – professional misconduct – appropriate sanction

Health Ombudsman Act 2013 (Qld) s 103, s 104, s 107(4)

Health Ombudsman v Arora [2019] QCAT 200
Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264
Pharmacy Board of Australia v Tan [2016] VCAT 1653

APPEARANCES & REPRESENTATION:

Applicant:

C Wilson instructed by the Office of the Health Ombudsman

Respondent:

Hall Payne Lawyers (who did not appear)

REASONS FOR DECISION

This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) (“the Act”) s 103(1)(a), s 104. Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Mr M Crain, Ms M Macdonald and Ms C Narayan in accordance with the Act.[1]
[1]Health Ombudsman Act 2013 s 126. For their function, see s 127.
The respondent was at the relevant time a registered Chinese Medicine Practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, in that on a particular occasion he sexually assaulted a patient, which was outside the boundaries of a normal therapeutic relationship. As well, it is alleged that the respondent failed to notify the Chinese Medical Practitioner Board that he had been charged with a criminal offence, as required by the National Law s 130(1).
The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is legally represented, and has consented to the applicant’s bundle of material being placed before the Tribunal, but did not take any active part in the proceeding. In a letter from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 58
Decision Date

CaseChat Overview and Summary

The case of Health Ombudsman v Chang involved a disciplinary proceeding against Min-Hsun Chang, a registered Chinese Medicine Practitioner, who was referred to the Queensland Civil and Administrative Tribunal by the Health Ombudsman. The Tribunal, consisting of Judicial Member D J McGill SC, assisted by M Crain, M Macdonald, and C Narayan, was tasked with determining whether Chang had engaged in professional misconduct and unprofessional conduct as alleged. The primary issue was whether Chang had sexually assaulted a patient and failed to report a criminal charge as required by law. After considering the evidence, including witness statements, the transcript of the criminal trial, and submissions from both parties, the Tribunal found that Chang had indeed sexually assaulted the patient and failed to report the criminal charge. The Tribunal concluded that Chang's actions constituted professional misconduct and unprofessional conduct. As a result, Chang was reprimanded, disqualified from applying for registration as a health practitioner for five years, and prohibited from providing any health service until he obtained registration. The interim prohibition order issued by the Health Ombudsman was set aside, and the parties were ordered to bear their own costs of the referral.

The Tribunal's reasoning was grounded in the evidence presented, including the complainant's consistent account of the assault, her immediate actions following the incident, and the presence of a substance found in the massage oil used at the practice in her vagina. The Tribunal rejected Chang's account as implausible and noted the lack of insight and remorse shown by Chang. The sanction imposed was considered appropriate to protect the public, maintain professional standards, and uphold public confidence in the health profession. The decision reflects the Tribunal's consideration of similar cases and the need to balance the interests of personal and general deterrence with the circumstances of this particular case.

Orders