Health Ombudsman v Newman

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Newman [2019] QCAT 397

PARTIES:

THE HEALTH OMBUDSMAN

(applicant)

v

PHILIP ROY NEWMAN

(respondent)

APPLICATION NO/S:

OCR112-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 December 2019 (ex tempore)

HEARING DATE:

13 December 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

1. Pursuant to s 113(1) of the Health Ombudsman Act2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.

2. Pursuant to s 73(2)(a)(ii) of the Health Ombudsman Act2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order on 14 July 2018.

3. Pursuant to s 113(4)(a) of the Health Ombudsman Act2013 (Qld), the respondent is permanently prohibited from providing any health service.

4.   Each party must bear their own costs of the proceeding. 

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was an unregistered health care professional – where the respondent provided a number of services around South East Queensland including therapeutic massage therapies and lymphatic drainage massage – where the applicant instituted disciplinary proceedings against the respondent – where the respondent was convicted on his own plea of guilty of various sexual offences against patients – where the respondent did not engage with the disciplinary proceedings – where there was no dispute that the appropriate order was that the respondent be permanently prohibited from providing any health service – whether there are any restrictions that the Tribunal could impose short of a permanent prohibition that would adequately ameliorate the risk posed by the respondent.  

Health Ombudsman Act2013 (Qld) s 4, s 68, s 73(2)(a)(ii), s 103(1)(a), s 104, s 113(1), s 113(2), s 113(4), s 113(4)(a).

Briginshaw v Briginshaw (1938) 60 CLR 336.

APPEARANCES & REPRESENTATION:
Applicant:	Mr C. Lloyd of the Office of the Health Ombudsman
Respondent:	No appearance

REASONS FOR DECISION

1. This is a referral by the Director of Proceedings on behalf of the Health Ombudsman (“applicant”) of a matter against Philip Roy Newman (“respondent”), pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act2013 (Qld)(“HO Act”). The applicant refers the matter seeking a prohibition order pursuant to s 113(1) and (4) of the HO Act. 

2. The respondent is a 68 year old former massage therapist.  He is not a health practitioner requiring registration under the Health Practitioner Regulation National Law 2009 (Queensland) (“National Law”), but meets the definition of a “health practitioner” as defined by the National Law.  During the time of the relevant conduct the respondent worked at various locations in South East Queensland, providing massage therapy and lymphatic drainage massage. 

3. The conduct the subject of the referral occurred in 2009 and 2010, when the respondent was aged 58 to 59 years.  The respondent sexually assaulted three female patients by massaging their breasts on the pretence that he was providing legitimate therapeutic massage therapy, specifically lymphatic…