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
Chinese Medicine Board of Australia v Lui (Review and Regulation) [2024] VCAT 1108
Healthcare Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28
Health Ombudsman v Chang [2022] QCAT 58
Honey v Medical Practitioner Board of Victoria [2007] VCAT 526
Nursing and Midwifery Board of Australia v Scott (Review and Regulation) [2018] VCAT 1488
Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056

APPEARANCES & REPRESENTATION:
Applicant:	Mr C Lloyd, Principal Legal Officer of the Office of the Health Ombudsman
Respondent:	No appearance

REASONS FOR DECISION

1. The applicant’s representative told the Tribunal that he had communicated with the respondent by email as recently as 14 March 2025 in relation to the proceedings but had received no contact or response.

2. The respondent was sent a notice from the Tribunal on 22 April 2025 confirming the matter was proceeding and that he had a right to appear.  

3. By email dated 7 August 2024 the respondent wrote to the applicant advising “do whatever you like with Qcat [sic] as you have broken me in every way.”  A copy of this email was filed in the Tribunal as an exhibit to Mr Lloyd’s affidavit.

4. Pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal was satisfied that the respondent has been given notice of the hearing under section 92 and has failed to appear, in the circumstances the Tribunal proceeded to hear and decide the matter in the respondent’s absence.

5. The Tribunal is satisfied that it has jurisdiction to proceed with the matter pursuant to sections 9(2)(a) and 10(1)(b) of the QCAT Act and sections 96(1)(a) and 107 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

6. 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

7. 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’).

8. 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.

9. 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.

10. 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].

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. The Tribunal notes the contents of a letter sent by the respondent to the Office of the Health Ombudsman dated 27 June 2024 attaching a copy of an affidavit which the respondent describes as “outlining my decision to plead guilty”.  The letter says:

    I have rebutted these 2 allegations for 3 years.  I have been in practice for 30 years with NO RECORD, criminal or civil.  This has broken me financially, destroyed my professional reputation and life.  Can you please explain how the legal business is JUST, MORAL OR FAIR in Queensland and Australia?

17. Having regard to the comments made in the affidavit attached to this letter and that the respondent has not challenged his convictions in the proceedings, the Tribunal is concerned that the respondent failed to show that he has insight into his offending and lacks remorse.  In the circumstances the Tribunal adopts the applicant’s submission that:[4]

    the respondent has chosen not to engage in these proceedings since 7 August 2024.  He has not presented any evidence that would indicate that he has any insight or remorse, or taken any steps toward rehabilitation.  In the absence of such evidence, the applicant submits that the respondent would continue to pose a risk to the community if he was allowed to practise in the future.

    [4]Applicant’s Submissions (n 2) [131].

18. The Tribunal is also concerned that any sanction should address issues of specific and general deterrence, in particular, having regard to the demonstrated lack of insight into the seriousness of the conduct.  In this regard, the applicant submitted:[5]

    Specific deterrence involves an assessment of any ongoing risk posed by a practitioner and what might be needed to deter further misconduct.  It involves consideration of matters including whether they have demonstrated insight into the seriousness of the conduct and how and why it occurred.

    As referred to above, the applicant submits that the respondent’s refusal to participate in the disciplinary proceedings underscores the necessity for specific deterrence.  Similarly, the applicant submits that general deterrence is an important consideration in this matter as there is a necessity to maintain professional standards and public confidence in registered Chinese medicine practitioners. 

    [5]Ibid [132] citing Nursing and Midwifery Board of Australia v Scott (Review and Regulation) [2018] VCAT 1488 [21]-[23].

19. In considering the appropriate sanction to be imposed the Tribunal has had regard to the purpose of disciplinary proceedings which is to protect the public not to punish the respondent and that the health and safety of the public are paramount.

20. The applicant has provided the Tribunal with a number of comparable decisions and has relied specifically on the decisions of Chinese Medicine Board of Australia v Lui (Review and Regulation) [2024] VCAT 1108, Health Ombudsman v Chang [2022] QCAT 58 (‘Chang’) and Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056.

21. The similarities of those cases with the present case provide the Tribunal with a guide to the sanction which could be imposed in this case and support that the sanction being proposed by the applicant in this case is well within range.

22. The Tribunal has had regard to the seriousness of the conduct and considers that it warrants cancellation of the respondent’s registration on the basis that he is currently not a fit and proper person to hold registration.

23. It is noted that cancellation is a serious determination as it “sends a clear message of unsuitability to practice”.[6]

    [6]Applicant’s submissions (n 2) [193] citing Honey v Medical Practitioner Board of Victoria [2007] VCAT 526.

24. The Tribunal is satisfied that, having regard to the following factors as submitted by the applicant, the respondent’s registration should be cancelled because the:[7]

    (a)respondent’s conduct was not isolated.  It resulted in his conviction for two counts of sexual assault on two female clients and demonstrates a gross defect in character;

    (b)conduct was objectively serious.  The complainants were traumatised.  The respondent knew or ought to have known of the patients’ vulnerability given the nature of the treatment provided and the significant power disparity;

    (c)respondent has not availed himself of an opportunity to engage in rehabilitation and his lack of engagement in these proceedings demonstrates he lacks sufficient insight and remorse;

    (d)overall seriousness of the conduct demonstrates that cancellation of the respondent’s registration is required to send a strong message to other Chinese medicine practitioners that the conduct in question is reprehensible and to other patients that they will be protected from that conduct.

    [7]Applicant’s submissions (n 2) [196].

25. The applicant has submitted and the Tribunal is satisfied that, having regard to the decisions of Health Care Complaints Commission (NSW) v Morsingh (No 3) [2022] NSWCATOD 28 and Chang, the respondent should be prohibited from providing any health service until he obtains registration as a health practitioner in order to protect the public.

Orders

1. In the circumstances the Tribunal makes the following orders:

2. Pursuant to section 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.

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

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

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

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

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

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

9. There is no order as to costs.