Health Ombudsman v Cja

[2022] QCAT 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v CJA [2022] QCAT 161

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

CJA

(respondent)

APPLICATION NO/S:

OCR160-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 May 2022 (ex tempore)

HEARING DATE:

11 May 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Dr D Rimmer
Dr D Khursandi
Ms A Blair

ORDERS:

1.     Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld) the respondent has behaved in a way that constitutes unprofessional conduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) the respondent is reprimanded.

3.     No order as to costs.

Non-Publication order

1. Save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency, until further order publication is prohibited, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 section 66(1), of any medical reports about the applicant, and of:

i.           the contents of a document of other thing proceed to the Tribunal;

ii.          any order made or reasons given by the Tribunal;

to the extent that it would identify the respondent, or any member of his family.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent practitioner pleaded guilty to one count of sexual assault and was sentenced to probation and community service, with no conviction re – where the conduct did not occur in his capacity as a medical practitioner – where the respondent expressed genuine remorse – whether a finding of professional misconduct or unprofessional conduct should be made  

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent submitted for a non-publication order originally opposed by the applicant – where the respondent put before the tribunal medical  evidence supporting the need for the order – where the responded has significant mental health concerns – where the applicant no longer opposes the order - whether a non publication order should be made

Health Ombudsman Act 2013 (Qld) s 107

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Grizini v the Medical Practitioners Board of Victoria [2005] VCAT 826

Health Ombudsman v McAndrew [2021] QCAT 266

Health Ombudsman v Mutasa [2019] QCAT 315

Legal Services Commission and Nguyen [2015] QCAT 211

Legal Services Commission v McLeod [2020] QCAT 371

Medical Board of Australia v Arulanandarajah [2021] VCAT 85

Nursing and Midwifery Board of Australia v Faulkner [2018] QCAT 97

Nursing and Midwifery Board of Australia v Pickett [2021] VCAT 162

Pharmacy Board of Australia v Tan [2016] VCAT 1653

APPEARANCES & REPRESENTATION:
Applicant:	Mr C Llyod, Principal Legal Officer at the Office of the Health Ombudsman
Respondent:	Mr AJ Edwards, counsel instructed by Gilshenan and Luton Legal Practice

REASONS FOR DECISION

1. This proceeding is concerned with an application brought by the Health Ombudsman (the applicant), seeking certain findings and orders concerning the respondent.  The orders have already been made by the Tribunal and are as follows:

   (a)the conduct of the respondent constitutes unprofessional conduct pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld);

   (b)pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), that the respondent is reprimanded;

   (c)there be no orders as to costs; and

   (d)save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency until further order publication is prohibited pursuant to the Queensland Civil and Administrative Tribunal Act 2019 (Qld) section 66, of any medical reports about the applicant and of:

   (1) the contents of a document or other thing produced to the Tribunal; 

   (2) any order made or reasons given by the Tribunal

   to the extent that it would identify the applicant or any other member of his family. 

2. The Tribunal would note at this stage that the applicant contended that a finding ought be made that the conduct of the respondent constituted misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) but, for reasons, which will become apparent, the Tribunal has elected not to make such an order. Further, for reasons which will also become apparent, the Tribunal considered it not appropriate to suspend for any period of time the registration of the respondent.

3. The Tribunal would also note that, initially, the non-publication order was opposed by the applicant but following a more recent report by the respondents treating psychiatrist, the applicant quite reasonably accepted that a non-publication order ought be made.

4. At all material times, the respondent held registration as a medical practitioner, in particular, as a specialist.  The respondent had held that registration since August 2007.  Since 2 August 2021, the respondent has been the holder of a non-practising registration having his right to practice previously suspended in February 2020.  The conduct that brings the respondent before the Tribunal can be summarised as follows.  On the evening of 14 December 2019, the respondent attended a nightclub where he met a woman with whom he was drinking and engaging in consensual kissing and dancing over several hours, that is, there was a period of time where there was mutual flirtation between the respondent and this woman who was later the victim of a sexual assault.

5. The facts would also suggest that just prior to the offending, the same woman had led the respondent by the hand upstairs to the vicinity where the offending occurred.  She was heavily intoxicated and the respondent assisted her to some seats.  By this time, the respondent was also intoxicated.  Witnesses observed the respondent continue to kiss the woman after she was apparently unconscious and that he had also touched her breasts on the outside of her clothing and put his hand on her thigh.  For this conduct, the respondent pleaded guilty to sexual assault.  It was, as already said, abundantly clear that at the time, he was also heavily intoxicated.  In fact, so intoxicated that he had not even recognised that this woman was effectively unconscious.  He was sentenced on 8 March, 2021 to 100 hours community service, which he has since completed, and 24 months of probation.  Unsurprisingly, for matters that will become apparent, there was a condition imposed that the respondent submit to medical, psychiatric or psychological treatment as directed.  Having regard to the relatively low level of the offending and also other surrounding circumstances, no conviction was recorded. 

6. The respondent was sentenced on the basis that while he honestly believed the victim was consenting to the conduct, that that belief was not reasonably held, no doubt as a combination of his level of intoxication together with other substances that he had ingested during the course of the night.  The respondent was 49 years old at the time of the offending.  He is now 51 years of age.  As such, no leniency is required because of his youth or relative youth.  It is, however, relevant that at the time, the victim herself was a mature woman in her mid-40s. 

7. There are a number of factors favourable to the respondent.  The Tribunal would note some at this stage but others will be referred to later herein.  The respondent has no prior convictions and otherwise has an unblemished reputation both as a health practitioner and as a general member of the public.  He is clearly remorseful and ashamed of his conduct.  As already referred to, there are also circumstances, which, while not constituting a defence under our system of criminal law,  do provide relevant ameliorative background to his conduct.  The Tribunal would also note here that the remorse and shame of the respondent extended to him penning a letter of apology to the victim. 

8. That there was a period of flirtation leading up to the subject offending and the intoxication of the respondent at the time, together with his mental health issues, were clearly matters taken into account by the sentencing magistrate.  That is particularly so having regard to the fact that no conviction was recorded.  It is also appropriate to note here references on behalf of the respondent that speak extremely highly of his character. It can be said with a high level of confidence that this offending was not only offending the respondent is deeply ashamed about but was also out of character.  Why it occurred at all will be addressed below in more detail. 

9. One of the central issues was whether the conduct amounted to professional misconduct or unprofessional conduct.  This was a finely-balanced issue, one which Mr Lloyd, who appeared on behalf of the applicant, fairly conceded was one where reasonable minds might differ. 

10. On balance, the Tribunal has reached the conclusion that the findings that ought be made is that the respondent had engaged in unprofessional conduct.  That is so primarily for the following reasons:

    (a)the offending involved two mature adults who had been mutually flirting for a period of time in circumstances where they were both getting more and more intoxicated as time went by;

    (b)at the time, the respondent honestly believed the victim was a consenting participant;

    (c)the offending itself was very much at the lower end of the scale;

    (d)the offending was, as already said, uncharacteristic;

    (e)there was no link whatsoever between the offending and the respondent’s professional activities;

    (f)at the time, the respondent’s actions were very much a product not only of his intoxication, but also his very serious mental health issues which will also be a matter dealt with further below;

    (g)there is no suggestion of this offending involving any level of premeditation on the part of the respondent; and

    (h)the risk of re-offending is negligible.

11. The Tribunals have referred to a number of cases, both on behalf of the applicant and the respondent.  On behalf of the applicant, reference was made to Nursing and Midwifery Board of Australia v Pickett [2021] VCAT 162. Each party also referred to the Medical Board of Australia v Arulanandarajah [2021] VCAT 85. The applicant further referred to the decision of Health Ombudsman v Mutasa [2019] QCAT 315 and, the Pharmacy Board of Australia v Tan [2016] VCAT 1653. In respect of Tan, the applicant quite sensibly conceded that that was of little assistance, having regard to the level of offending involved. 

12. On behalf of the respondent, Pickett was also referred to, as was the decision in Arulanandarajah.  In that case, a doctor had sexually assaulted a nurse who was a former colleague and friend, after an evening of drinking.  She was awoken by the doctor in the early hours of the morning.  She had been lying facedown on the bed and awoke to find the doctor kissing and biting her neck and shoulder.  He then reached around inside of her pants and touched her vagina, around the clitoris.  She escaped.  Quite disturbingly, he then pursued her and, even more disturbingly, pulled her onto the bed and tried to continue kissing her. 

13. The offending in that case is far more serious than that involved here.  In that case, the Tribunal contrasted an earlier decision in Grizini v the Medical Practitioners Board of Victoria [2005] VCAT 826, where no conviction had been recorded. In that case, the doctor had been caught briefly exposing his penis in a newsagency whilst looking at pornography. There, the Tribunal overturned an earlier finding of professional misconduct. The Tribunal, in reference to that case, noted that it was at the lowest end of the scale of a sexual nature and did not involve an assault against a patient or colleague. It was clearly an important factor that there was no connection between the conduct and the doctor’s professional work. That, of course, is the situation here. In that case it was said, at paragraph 64:

    Not all personal misconduct will amount to professional misconduct.  It depends firstly on how closely connected the conduct is with the carrying out of the professional practice.  Secondly, where it is removed from professional practice, it may nevertheless amount to professional misconduct where it is of a sufficient immoral or outrageous or disgraceful character. 

14. There is no suggestion here that the respondent’s conduct had any involvement with his professional activities.  However, on any view of it, his conduct involved degrees of disgraceful behaviour, immorality and outrageousness.  In respect of the latter, it was all the more outrageous, that it occurred in a very public place.  That said, the offending conduct has to be viewed in the light of the background of mutually flirtatious behaviour and the respondent’s honest, even if unreasonable, believe as to consent and, of course as already referred to, the respondent’s mental health issue. 

15. The Tribunal has also referred to the decision of Legal Services Commission and Nguyen [2015] QCAT 211. That case involved less serious offending, even at a lower level than involved here, however, it involved a serious level of power imbalance, the offender being a 39 year old barrister and the victim, his 19 year old secretary. That case involved a gross breach of trust which is not present here.

16. Not at all surprising, given the relevant facts, matters and circumstances surrounding this case, it was submitted on behalf of the respondent that no further sanction is required.  The issue of non-publication will be dealt with in a moment. 

17. There are two reports of the treating psychiatrist, one dated 15 February 2021 and the other, 26 April 2022.  In his report of February 2021, the Doctor noted that the respondent has suffered from serious mental health issues over an extended period of time which have been exacerbated over time by a number of catastrophic events in his life.  As a consequence of the non-publication orders that the Tribunal has made, it is not intended to go into those catastrophic events in any further detail.  It was also reported that at the time of the offending, the respondent had been and was suffering from a major depressive disorder.  As a consequence of that, the respondent was, among other things, subject to anxiety, severe swings of mood and obsessive compulsive symptomology.  In respect of the subject conduct, it was reported:

    “The respondent worked hard to try and re-establish his practice.  The personal toll on him during his time was significant.  He started smoking cigarettes, which was not something he normally did, and started consuming alcohol regularly in the evening to relieve his stress.  During this time, he continued to go on and off antidepressant medications that he had prescribed for himself.  To my understanding, he had not gone back to see his general practitioner during that time.  It was during this time, when he was in a state of turmoil, that he made the poor decision to go into the city on his own and ended up at the nightclub where the incident occurred.  That is the subject of the court proceedings.  The consequence of his behaviour on that night and the subsequent police charges have had a catastrophic effect on his life.  The respondent has been stood down and, has had his admission rights to private hospitals withdrawn.”

18. The Doctor also went on to report:

    “The respondent is currently still suffering from a significant mental health disorder which is going to require intensive ongoing treatment.  Whilst  resolution of the current matter will partially alleviate the severity of his symptoms, it is not going to be sufficient to induce a sustained or lasting remission.  I anticipate that he is going to need to require psychiatric medication on an ongoing basis for at least the next two to five years.  He would benefit from long-term one-on-one physiotherapy to help him address his underlying difficulties.  This has not been possible in the crisis state that he has found himself in the last 12 months.”

19. In deciding what orders ought be made, it is important to bear in mind that, in proceedings such as this, the Tribunal is primarily concerned with ensuring, as far as is practicable, the safety and wellbeing of the public and the maintenance of proper professional and ethical standards, and to protect the stature and integrity of the profession in the eyes of the public.  The sanctions imposed by this Tribunal are not meant to be punitive in nature.  That said, typically, conduct such as this would warrant the sending of an appropriate message of both personal and general deterrence.

20. I will simply refer at this stage to the cases which the Tribunal relies on in this context.  The first is the Nursing and Midwifery Board of Australia v Faulkner [2018] QCAT 97. The second case is the Health Ombudsman v McAndrew [2021] QCAT 266. Finally, the Legal Services Commission v McLeod [2020] QCAT 371.

21. In McAndrew, it was observed that the causative contribution of mental illness to the respondent’s conduct reduces but does not eliminate the significance of the consideration of general deterrence in the determination of a sanction.  In McLeod, similar observations were made to the effect that the evidence of a mental health disorder may warrant a sensible moderation where it was a contributory factor in the person’s conduct.

22. In the report of the Doctor in February 2021, he opines that the respondent’s risk of further offending is negligible.  In all the circumstances, the Tribunal is able to accept and will proceed on that basis.  In the Tribunal’s view, it is also questionable, given the extent of his mental health issues, that the respondent was, at the time of the conduct, and remains, an appropriate vehicle through which to send a message of general deterrence.  Personal deterrence is not a relevant consideration in this case. In his earlier report, the Doctor opined:

    “Despite the intensive treatment over the last 12 months and his ongoing good compliance with medication and following all advice provided to him, the respondent has continued to struggle to function on a day-to-day basis.  He has become socially withdrawn.  He is spending extended periods of time lying down at home and struggling to contribute in any meaningful way to family life.  He has felt enormous guilt in relation to his behaviour.  He is struggling with the loss of his identity and career.  It remains uncertain whether or not he is at any stage going to be able to return to medicine.”

23. What is clear is that the respondent is going to need ongoing intensive psychiatric treatment over an extended period of time to both keep him alive and hopefully, progressively, to help him to address the number of underlying difficulties that have led him to developing his symptoms.

24. In relation to his risk of reoffending, it is my opinion that the respondent is at negligible risk of reoffending.  It is very clear that he has learnt a very difficult lesson from his behaviour on that night.  I do not consider it likely that the circumstances that arose on that particular day would occur again in the future.  The respondent has been advised in strong terms in relation to the use of alcohol when unwell and on medication, and has taken this on board and has minimised his alcohol use.

25. The more recent report of the Doctor of 26 April 2022, makes it clear that the respondent’s mental health issues are still extreme and ongoing.  Notwithstanding the respondent’s mental health issues, they have to be considered in all the relevant circumstances.  It was not just the respondent’s mental health at the time that has to be considered.  Clearly, he is an intelligent man.  Notwithstanding his mental health issues, which he was aware of, he nonetheless made a conscious decision to go to a nightclub that night intending to drink to excess notwithstanding him having ingested medication which was described as being “albeit self-prescribed”.

1. As was pointed out on behalf of the applicant, a reprimand is by no means a trivial matter.  It is a matter of public record and it has the potential to materially affect the reputation of the practitioner.  It can be readily accepted that there are a number of mitigating factors in favour of the respondent.  Those do not need repeating.  In this regard, the Tribunal should also note that the respondent has suffered a number of significant negative consequences of his offending in addition to the sentence which was imposed upon him.  His registration was suspended;  he now has a non-practising registration.  Notwithstanding there being no conviction recorded, his fellowship with the College of speciality was cancelled, and whilst in hospital, his treatment was prematurely ended as a consequence of it no longer being safe for him to remain when knowledge of his offending became known and exaggerated. He was not only ostracised by other patients but was physically assaulted.

2. All of that said, notwithstanding the issues concerning his mental health, including the ingestion of self-prescribed medication, he set about to deliberately overindulge in alcohol that evening.  The Tribunal has reached the view that a reckless course of conduct on the part of the respondent warrants the recording of a reprimand.

3. Turning then to the remaining matters, that whether a period of suspension ought be applied and whether a nonpublication order ought be made.

4. The applicant advocates for a period of suspension of six to nine months.  In the alternative, the applicant contended for a period of suspension of in the order of three months.  The applicant quite fairly conceded that, in the circumstances of this case, it might well be open for the Tribunal to view that a period of suspension may not be appropriate in all the circumstances.

5. On balance, the Tribunal is satisfied that a period of suspension was not warranted.  That is because firstly, having regard to the particular circumstances surrounding this case, the imposition of a period of suspension would have little, if any, impact on the sending of an appropriate message of deterrence, or any other relevant message, for that matter.

6. Second, the respondent’s right to practise was suspended in February 2020, that is, his right to practise has already been suspended notwithstanding him holding a non-practising registration for some two years and three months.  There is no basis for concluding that an additional period of suspension of six to nine months, let alone three months, would achieve anything.  The medical report makes it tolerably clear that it is extremely unlikely that the respondent will be returning to practice in the foreseeable future, if at all. In reality a limited period of suspension, would serve no meaningful purpose.

7. Turning to the issue of nonpublication, that was originally opposed by the applicant, but having regard to the matters addressed in the Doctors most recent report, the applicant quite sensibly agreed that it was appropriate in all the circumstances of this case to make the nonpublication orders already made.  It is for these reasons that the Tribunal made the orders that it did.