Health Ombudsman v McManus - [2025] QCAT 160

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v McManus [2025] QCAT 160

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

PHILLIP HUGH MCMANUS

(respondent)

APPLICATION NO/S:

OCR144-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 April 2025 (decision)

5 June 2025 (reasons)

HEARING DATE:

28 April 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Dr W Grigg
Ms M McDonald
Dr J McDonald

ORDERS:

THE TRIBUNAL ORDERS THAT:

1. Pursuant to s 93(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the respondent did not attend the hearing and the Tribunal is satisfied he has been given notice of the hearing under s 92.

2. Pursuant to ss 93(2) and (3) of the QCAT Act, the Tribunal will hear and decide the matter in the respondent’s absence and in circumstances where he is a party to the proceeding.

IT IS THE DECISION OF THE TRIBUNAL THAT:

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

4. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

5. Pursuant to s 107(3)(e) of the HO Act, the respondent’s registration is cancelled.

6. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for six (6) years from the date of this order.

7. Pursuant to s 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service until he obtains registration as a health practitioner.

8. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on 27 August 2024 is set aside.

9. Pursuant to s 73(2)(b) of the HO Act, the interim prohibition order imposed by the Health Ombudsman on 27 August 2024 is set aside.

10. There is no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENLSAND CIVIL AND ADMINSITRATIVE TRIBUNAL – where the respondent does not attend the final hearing of the matter – whether the Tribunal is satisfied the respondent received notice of the hearing in accordance with s 92 of the QCAT Act – whether the Tribunal should proceed in the respondent’s absence

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was a registered Chinese medicine practitioner since 2012 – where the respondent pleaded guilty to and was convicted of two counts of sexual assault – where the respondent does not seek to go behind his convictions – where the respondent has not engaged in these proceedings since August 2024 – whether the respondent has demonstrated insight or remorse – whether the respondent is a fit and proper person to practise

Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336

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: [2025] QCAT 160
Decision Date: 28 April 2025 (decision) 5 June 2025 (reasons)

CaseChat Overview and Summary

In the matter of Health Ombudsman v McManus, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding whether the respondent, a registered Chinese medicine practitioner, was a fit and proper person to practise following his conviction for sexual assault. The respondent, who had been legally blind since his mid-30s, did not attend the final hearing, leading to issues regarding whether the Tribunal was satisfied he had been given notice of the hearing. The Tribunal had to determine whether it should proceed in the respondent’s absence and whether his professional misconduct warranted the imposition of penalties under the Health Ombudsman Act 2013.

The central legal issues were whether the Tribunal could proceed in the respondent’s absence, given his failure to attend the hearing despite being notified, and whether the respondent had demonstrated sufficient insight or remorse to warrant a lesser penalty. The Tribunal was also required to determine whether the respondent’s past conduct constituted professional misconduct and, if so, what penalties should be imposed under the Health Ombudsman Act. The respondent had not engaged in these proceedings since August 2024, and he did not seek to go behind his convictions.

The Tribunal concluded that it was satisfied the respondent had received notice of the hearing and decided to proceed in his absence. It found that the respondent’s conduct constituted professional misconduct, as defined by the Health Practitioner Regulation National Law. The Tribunal noted the respondent’s lack of prior criminal history, his long-standing practice without previous allegations of misconduct, and the mitigating factors considered by the sentencing judge. Despite this, the Tribunal determined that the respondent’s actions warranted the cancellation of his registration and a six-year disqualification from applying for registration. The Tribunal also set aside the immediate registration action and interim prohibition order imposed by the Health Ombudsman.

The Tribunal ordered that the respondent’s registration be cancelled, he be reprimanded, and he be disqualified from applying for registration for six years. Additionally, the respondent was prohibited from providing any health service until he obtained registration as a health practitioner. The Tribunal also set aside the immediate registration action and interim prohibition order imposed by the Health Ombudsman, and made no order as to costs.

Orders

Orders of the court

THE TRIBUNAL ORDERS THAT:

1. Pursuant to s 93(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the respondent did not attend the hearing and the Tribunal is satisfied he has been given notice of the hearing under s 92.

2. Pursuant to ss 93(2) and (3) of the QCAT Act, the Tribunal will hear and decide the matter in the respondent’s absence and in circumstances where he is a party to the proceeding.

IT IS THE DECISION OF THE TRIBUNAL THAT:

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

4. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

5. Pursuant to s 107(3)(e) of the HO Act, the respondent’s registration is cancelled.

6. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for six (6) years from the date of this order.

7. Pursuant to s 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service until he obtains registration as a health practitioner.

8. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on 27 August 2024 is set aside.

9. Pursuant to s 73(2)(b) of the HO Act, the interim prohibition order imposed by the Health Ombudsman on 27 August 2024 is set aside.

10. There is no order as to costs.

Background

Background to the litigation

The Tribunal proceeds having regard to section 4(1) of the HO Act that the main principle for administering the Act is that the health and safety of the public are paramount. The applicant bears the onus of proof to the civil standard that is on the balance of probabilities with a degree of satisfaction varying according to the gravity of the facts to be proven; that is, the standard articulated in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336. The respondent’s background The respondent is presently 75 years of age. The matters complained of took place when the respondent was 71 years of age. The respondent is self employed as a remedial masseuse. In 2010 the respondent was awarded a Bachelor of Health Science (Acupuncture). The respondent is also registered as a Chinese medicine practitioner with the Chinese Medicine Board of Australia since 1 July 2012. The respondent has practised as an acupuncturist and remedial masseuse for over 30 years and has not previously been the subject of disciplinary proceedings.[1][1]Applicant’s Submissions filed 27 February 2025 [12]-[16] (‘Applicant’s Submissions’). The complaints against the respondent were made by two individuals who complained of being sexually assaulted by the respondent during a massage consultation. The details of the assaults are set out with particularity in the applicant’s submissions and for present purposes do not require to be set out here. It is noted that the respondent pleaded guilty in the District Court of Queensland and was sentenced to nine months imprisonment, wholly suspended for nine months. The basis of the sexual assaults was the respondent’s touching of the complainants’ nipples. The respondent’s conduct had negatively impacted both complainants. The sentencing judge noted that the respondent had been legally blind since his mid-30s and that he suffered from macular degeneration in both eyes and would eventually lose his eyesight.[2] [2]Ibid [84]. The sentencing judge also noted that the respondent:(a)had no prior criminal history;(b)had been married for 40 years(c)had practised in Chinese medicine for over 30 years and there had been no other allegation of misconduct of any kind;(d)provided character references from 4 patients attesting to his good character and the value of his work as a massage therapist in the community; and(e)was otherwise a person of good character. The sentencing judge determined that there was a need for general deterrence having regard to the importance of patients being able to trust their therapist. The sentencing judge determined that this was achieved by imposing a term of imprisonment but that the mitigating factors warranted the sentence being wholly suspended for nine months. Having regard to the plea of guilty entered by the respondent to the two counts of sexual assault, the Tribunal is satisfied that the respondent committed the two counts of sexual assault. The Tribunal is also satisfied that the conduct constitutes professional misconduct as defined by section 5 of the Health Practitioner Regulation National Law (Queensland).[3][3]Health Ombudsman Act 2013 (Qld) sch 1 (definition of ‘professional misconduct’), referring to the Health Practitioner Regulation National Law (Queensland) s 5.

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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