Health Ombudsman v Lo - [2020] QCAT 198

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Lo [2020] QCAT 198

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

YU-CHIEH LO

(respondent)

APPLICATION NO/S:

OCR228-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 May 2020 (ex tempore)

HEARING DATE:

6 May 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

ORDERS:
1. Pursuant to s 113(1) of the Health Ombudsman Act 2013 (Qld), because of his conduct, the respondent poses a serious risk to persons.

2. Pursuant to s 113(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently restricted from providing any health service to female patients, paid or otherwise, in a clinical or non-clinical capacity.

3. The interim prohibition order issued by the Health Ombudsman on the 21st of August 2019 is set aside pursuant to s 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld).

4. The Tribunal makes no order as to costs.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was an unregistered health care professional – where the respondent provided massage therapy – where the applicant instituted disciplinary proceedings against the respondent – where the respondent has been convicted guilty of his own plea of guilty – whether the Tribunal should make an order permanently prohibiting the respondent from providing any health service

Health Ombudsman Act 2013 s 8, s 113

Queensland Civil and Administrative Tribunal Act 2009 s 66

Health Ombudsman v Kirk [2019] QCAT 301

Health Ombudsman v MacBean [2019] QCAT 300 Health Ombudsman v Newman [2019] QCAT 397

APPEARANCES & REPRESENTATION:

Applicant:

D Dupree of the Health Ombudsman

Respondent:

Appeared on his own behalf

REASONS FOR DECISION

On the 29th of June 2019, the Director (the applicant) filed a referral to the Tribunal seeking prohibition orders against the respondent, Yu-Chieh Lo (the respondent). The respondent was a massage therapist practicing in the western suburbs of Brisbane in April 2018. It is common ground, therefore, that he was a health service provider and health practitioner pursuant to s 8(a)(ii) of the Health Ombudsman Act 2013 (the HO Act) and a health care worker as defined in the National Code of Conduct for Health Care Workers (Queensland). The applicant alleges that, as a consequence of admitted criminal conducted committed against a female patient during a massage on the 20th of April 2018, along with the breach of an interim prohibition order, the respondent poses a serious risk to persons on a number of grounds which are set out in an attachment to the referral.
On the 18th of October 2019, the parties filed a statement of agreed facts. On the 29th of August 2019, the Deputy President of the Tribunal, his Honour Judge Allen QC, made a non-publication order pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, prohibiting publication of any document, evidence, and order/reasons given by the Tribunal to the extent that it could identify or lead to the…

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: [2020] QCAT 198
Decision Date: 6 May 2020 (ex tempore)

CaseChat Overview and Summary

In Health Ombudsman v Lo, the Health Ombudsman brought disciplinary proceedings against the respondent, who was an unregistered health care professional providing massage therapy. The respondent had previously pleaded guilty to charges related to his conduct. The Tribunal was tasked with determining whether the respondent should be permanently prohibited from providing any health services. The primary issue before the court was whether the respondent's conduct warranted such a prohibition, given his status as an unregistered health professional and his prior conviction. The court had to assess the risk the respondent posed to the public, particularly female patients, and decide on the appropriate restrictions.

The Tribunal found that the respondent's conduct demonstrated a serious risk to persons, justifying a permanent prohibition from providing any health services. The court emphasised the respondent's status as an unregistered health professional and his previous conviction as significant factors in this decision. It was noted that the respondent's actions had a detrimental impact on the public, especially female patients, and thus warranted stringent measures to prevent further harm. The court also considered the need to uphold the standards of the health care profession and protect the public from potential harm caused by unqualified practitioners.

In light of the findings, the Tribunal issued several orders. Firstly, it determined that the respondent posed a serious risk to persons due to his conduct. Secondly, it permanently restricted the respondent from providing any health service to female patients, whether paid or otherwise, in both clinical and non-clinical capacities. Thirdly, the interim prohibition order issued by the Health Ombudsman was set aside, as the Tribunal believed its own order was more appropriate. Lastly, no order was made as to costs. This decision underscores the importance of maintaining professional standards in the health care sector and protecting the public from unqualified practitioners.

Orders

Orders of the court

1. Pursuant to s 113(1) of the Health Ombudsman Act 2013 (Qld), because of his conduct, the respondent poses a serious risk to persons.

2. Pursuant to s 113(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently restricted from providing any health service to female patients, paid or otherwise, in a clinical or non-clinical capacity.

3. The interim prohibition order issued by the Health Ombudsman on the 21st of August 2019 is set aside pursuant to s 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld).

4. The Tribunal makes no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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