Health Ombudsman v Fogarty
[2023] QCAT 547
•31 August 2023 (ex tempore)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Fogarty [2023] QCAT 547
PARTIES:
HEALTH OMBUDSMAN (applicant)
v
RONALD PETER FOGARTY (respondent)
APPLICATION NO/S:
OCR049-23
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
31 August 2023 (ex tempore)
HEARING DATE:
31 August 2023
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Reid
Assisted by:
Ms Claire Elliot
Mr James McNab
Dr Anthony TuckettORDERS:
1. The conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled;
4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner for a period of three years;
5. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman on 30 August 2021 is set aside; and
6. No order as to costs.
CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent was convicted of an offence of using a carriage service to access child abuse material — where the respondent was a registered nurse — whether the conduct constitutes professional misconduct — what is the appropriate sanction — whether the respondent should be disqualified from applying for registration for two or three years
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
APPEARANCES & REPRESENTATION:
Applicant:
N Townsend, solicitor of the Office of the Health Ombudsman
Respondent:
Self-represented
REASONS FOR DECISION
This matter relates to the conduct of the respondent, who was at the time, a registered nurse (‘RN’) convicted of engaging in an offence of using a carriage service to access child abuse material. He was born 12 July 1957, so he was 66 years of age at the time he was offending. He was convicted and sentenced on 16 December 2022.
He had, retired from active employment as a RN in May 2019, but at the time of the conduct, he held general registration with the Nursing and Midwifery Board of Australia (‘Board’) as a RN, and had done so since 11 January 2001. He was therefore a registered health practitioner for the purposes of the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
The circumstances of the offending are set out in the sentencing remarks of his Honour Judge Smith, of 16 December 2022. Police had executed a search warrant at his home and a number of computer devices were located. A full forensic examination of the phone was conducted, which located four browsers used to access the dark net to install secure browsers, install peer-to-peer clients, media players, file manager, and a VPN.
The browser history indicated that the respondent had accessed child abuse material over a seven-day period between 13 and 21 August 2022. The respondent used a mobile phone to access 19 websites containing child abuse material, using a browser called Firefox.
On 18 July 2022, the URL information was viewed by police. They estimated that the respondent had accessed 541 image files and two websites with over 1,000 file images. It was impossible for police to ascertain the exact number of child abuse files that he had accessed.
Search terms that he used included:
(a)“13 YO fuck”;
(b)“dark net”;
(c)“girl porn”;
(d)“kids vagina”;
(e)“preteen”;
(f)“12 year old”;
(g)“US kids”;
(h)“dreams baby cunt”;
(i)“models PTHC video”;
(j)“Lolita porn”;
(k)“PTHC video”; and
(l)“adolescent models”.
A police device was used to view some of these. Multiple child abuse materials were identified on the webpage, including children between age two and 12 being raped by older men. It can be immediately seen that the material was abhorrent.
As his Honour Judge Smith indicated to the respondent at the time, these matters are not victimless offences. Every child who is viewed in those images has suffered the abuse and indignity shown on each occasion. The demand for such material by men, such as the respondent, gives succour to this vile industry. In the circumstances, his Honour sentenced Mr Fogarty to a period of 18 months imprisonment, suspended after he had served three months, with an operational period of two years. He was also subject to 12 months’ probation. A conviction was recorded. In the matter before me, the Health Ombudsman seeks orders, most of which are not opposed.
The orders that I will make, and which are not opposed, are:
(a)the conduct of the respondent in allegation one constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
(b)pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
(c)pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled;
(d)pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner for a period of three years;
(e)pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman on 30 August 2021 is set aside; and
(f)no order as to costs.
The matter which concerned the respondent in the proceedings before me related to the concerns that he had if his identity was able to be ascertained from people perusing the Ahpra webpage about this matter. The applicant has indicated to me that this is a matter for Ahpra itself and not for the Tribunal. The applicant has undertaken to provide an email to my Associate and to the respondent indicating the provisions of the National Law that apply, so that the respondent can, if he wishes, apply to Ahpra for the order that he seeks: to ensure that his name is not publicly able to be accessed on the Ahpra website.
In the circumstances, the only matter in dispute before me concerned whether the disqualification period should be for one of two or three years. We have discussed this amongst the members of the panel, and it is the universal view of all of us that, in the whole of the circumstances, disqualification for a period of three years is appropriate. In so deciding, I am conscious that after his retirement in May 2019, Mr Fogarty has had no intention to return to nursing, but in my view, issues of general deterrence require a significant disqualification.
People, and particularly registered nurses or other health practitioners who engage in conduct such as this, must understand that there will be significant sanctions in terms of periods of disqualification following from such appalling conduct.
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