Health Ombudsman v Labib - [2021] QCAT 90

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Labib [2021] QCAT 90

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

GEORGE THARWAT ABDULLAH LABIB

(respondent)

APPLICATION NO/S:

OCR031-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 March 2021 (ex tempore)

HEARING DATE:

24 March 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Professor Suzanne Kuys
Dr Viktoria Molloy

Mr James Walsh

ORDERS:

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

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

3. Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is fined the sum of $2000 to be paid to the applicant within five months.

4. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – referral by the Health Ombudsman – where the respondent is a registered physiotherapist – where the respondent videorecorded various males at the urinal and getting changed in a public bathroom – where the respondent pleaded guilty to 25 counts of Observations or Recording in Breach of Privacy (Genital or Anal Region) – whether such conduct should be characterised as professional misconduct – what sanction should be imposed for this conduct – whether and for what sum should the respondent be fined

Criminal Code 1899 (Qld), s 227A

Health Ombudsman Act 2013 (Qld), s 65, s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 226

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Ombudsman v Pearson [2021] QCAT 42
Health Ombudsman v Thomson [2020] QCAT 145
Health Ombudsman v Trotta [2019] QCAT 161
Health Ombudsman v Upadhyay [2020] QCAT 163
Medical Board of Australia v Holding [2014] QCAT 632
Medical Board of Australia v Khara [2018] NTCAT 1048
Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323

Psychology Board of Australia v Cameron [2015] QCAT 227

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

C Massy instructed by Fisher Dore Lawyers

REASONS FOR DECISION

This is a referral of a health services complaint against George Tharwat Abdullah Labib (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).
The applicant alleges, in the referral filed on 31 January 2020, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. In his response filed in the Tribunal, the respondent admits all the allegations in the referral. The parties are agreed as to the facts constituting the conduct the subject of the referral, that the conduct should be characterised as professional misconduct, and that the respondent should be reprimanded. The only matter in dispute between the parties is whether,…

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: [2021] QCAT 90
Decision Date

CaseChat Overview and Summary

The Health Ombudsman referred to the Queensland Civil and Administrative Tribunal (QCAT) allegations of professional misconduct against George Tharwat Abdullah Labib, a registered physiotherapist. The applicant alleged that the respondent had filmed males at urinals and in changerooms without their consent and pleaded guilty to 25 counts of making observations or recordings in breach of privacy. The parties agreed that the conduct constituted professional misconduct and that the respondent should be reprimanded. The only issue in dispute was whether, in addition to a reprimand, the respondent should be fined, and if so, the appropriate amount. The Tribunal found that the respondent's conduct was a serious violation of the privacy of the victims and constituted professional misconduct. A reprimand was ordered, and the Tribunal also found that a fine was necessary to adequately denounce the conduct and to meet the protective purposes of sanction. The Tribunal ordered that the respondent be fined $2,000.

The Tribunal emphasised that the purpose of sanction is to protect the public, not punish the practitioner. The Tribunal noted the mitigating factors in the respondent's favour, including his lack of other disciplinary or criminal history, his cooperation with authorities, and evidence of his rehabilitation and insight. However, the Tribunal found that the seriousness of the conduct required a sanction in addition to a reprimand to adequately denounce the conduct and send a message to other practitioners about the consequences of invading patients' privacy. The Tribunal determined that a fine of $2,000 was appropriate to meet the considerations of general deterrence and the protective purposes of sanction, taking into account the particular circumstances of the case and previous QCAT decisions.

Orders