Health Ombudsman v PTP - [2022] QCAT 428

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v PTP [2022] QCAT 428

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

PTP

(respondent)

APPLICATION NO/S:

OCR059-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 November 2022 (ex tempore)

HEARING DATE:

2 November 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Mr Peter Caldwell
Ms Kathleene Dower

Ms Claire Elliot

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the conduct of the Respondent in allegation 1 constitutes professional misconduct.

2. Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the conduct of the Respondent in allegation 2 constitutes unprofessional conduct.

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

4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months.

5. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL RADIATION PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent practitioner was an medical radiation practitioner – where the respondent pleaded guilty to one count of distributing child exploitation material – where the respondent was not intentionally distributing the material, but passively allowing it to occur – where the respondent has not applied to renew his registration – where the respondent has not participated in the proceedings – where the material provided to the Tribunal arising out of the sentencing proceedings demonstrates significant mitigating circumstances – where the applicant Ombudsman submits that the conduct amounts to professional misconduct and seeks that the respondent be reprimanded and be disqualified from applying for registration for 18 months to two years – whether the sanction proposed by the applicant is appropriate

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law (Queensland) s 130

Queensland Civil and Administrative Tribunal Act 2009 s 66

APPEARANCES & REPRESENTATION:

Applicant:

N Townsend, Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

In this matter, the findings and orders of the Tribunal are as follows:
(a)the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
(b)the conduct of the respondent in respect of allegation 3 constitutes unprofessional conduct pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld);
(c)pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 the respondent is reprimanded (Qld);
(d)pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 the respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months; and
(e)There be no order as to costs.
I will now give some reasons for the making of those orders. Before proceeding further, on 30 June 2022, this Tribunal made a non-publication order in respect of this matter in the following terms:
The Tribunal orders that:
(1) Until further order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
(a) the contents of a document or a thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal; and
(c) any order made or reasons given by the Tribunal,
is prohibited to the extent that it could identify or lead to the identification of the respondents (sic) daughter, save as is necessary for the parties to engage in and progress these proceedings, and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the health Ombudsman Act 2013 (Qld).
(2) Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.
That order was signed by the President, Justice Mellifont. For reasons which will become apparent, that order ought not be disturbed. For those reasons, any references to names that might lead to the identification of the respondent’s daughter will be anonymised.
In this proceeding, the applicant is the Director of Proceedings on behalf of the Health Ombudsman. The respondent will be referred to as PTP. Unfortunately, the respondent did not appear and nor was he represented at these proceedings. That is unfortunate because it means that the bulk of the material to which the Tribunal has access is that which was generated in the sentencing proceedings. In that regard, the Tribunal has no knowledge as to whether or not the respondent has continued with counselling or other medical attendance.
There is, however, some material to which I will be referring during the course of these proceedings, which I have already said were generated for the purposes of the sentencing proceedings in the District Court.
At all material times, the respondent practised as a diagnostic radiographer or radiation practitioner. The circumstances that underlie these proceedings are as follows.
Allegation 1 involves disturbing criminal conduct. On 8 September 2018, the police were conducting an online investigation into the use of peer-to-peer software in the distribution of child exploitation material.
On 25 October 2018, the police executed a search warrant on the respondent’s residential address. One of the computer towers seized by the police contained material consistent with the child exploitation material, although that material was inaccessible. Later that day, the respondent was charged with one count of possession of child exploitation material and one count of use of a carriage service to transmit, make available, publish, distribute, advertise or promote child abuse material.
On 31 January 2022, the respondent pleaded guilty to one count of distributing child exploitation material in the Ipswich District Court. He was sentenced on the basis that he had deleted the offending material before the police executed the search warrant and had not intentionally distributed the material. However, it was accepted that he passively allowed his computer to share the offending material. Following submissions, the respondent was placed on 30 months’ probation. No conviction was recorded. That is an unusual outcome in criminal proceedings involving child exploitation material and it is a matter to which the Tribunal will refer to in more detail in a moment.
It can be readily accepted that in relation to the conduct involving the child exploitation material, the respondent’s conduct amounted to professional misconduct; that is, being conduct that falls substantially below the standard which might reasonably be expected of a registered health practitioner of an equivalent level of training and experience.
Allegation 2 involved the fact that the respondent had failed to notify the relevant Board within seven days that he had been charged with the child exploitation material offences. That he failed to do so was in breach of section 130 of the Health Practitioner Regulation National Law (Queensland) (the ‘National Law’). Failing to report is a serious matter and falls within the meaning and effect of what constitutes unprofessional conduct.
That the respondent did not appear today was not entirely surprising. There is before the Tribunal an affidavit of Ms Townsend, which was affirmed on 7 June 2022. In that affidavit, Ms Townsend refers to correspondence by way of email between herself and the respondent. In that correspondence, the respondent, by way of response to the email sent by Ms Townsend on 13 April 2022, said as follows:
Thank you for talking to me this morning and explaining the disciplinary process in detail.
I trust the people conducting these proceedings will consider my case and make an appropriate decision so decline (sic) to participate further as I feel I have no further information to contribute.
That email was sent on 19 April of this year. The criminal offending that brings the respondent before this Tribunal is set out in a schedule of facts, which was tendered by consent in the sentencing proceedings. It points out that, at the time of the offending, the respondent was 49 years of age; he is now 52 years of age. There is no need to go through that statement of facts in any further detail.
The respondent, as was noted by the judge dealing with the matter, co-operated to a significant extent with the administration of justice. The matter was able to be dealt with by way of a registry committal on 20 February 2020 and he entered an early plea of guilty. It was also of note that he had no criminal history whatsoever.
Consistent with the non-publication orders, little will be said about the respondent’s family and mental health issues. However, it can be said that the respondent’s children had very difficult and traumatic backgrounds, particularly his daughter. It could also be said quite fairly, by reference to the matters set out in the report of the psychiatrist between lines 80 and 100, and 100 and 135, that this respondent has had a particularly unfortunate and stressful life from at least 2009.
By reference to the sentencing judge’s remarks, it would also seem that it is likely that the respondent’s daughter’s situation acted, in some way, as a contributing factor in the respondent’s offending. During his sentencing remarks, his Honour said:
Balancing the relevant considerations, I find there are, in combination, circumstances in this case that are exceptional. I have, in making that finding, taken into account the reasons for your offending, the nature of the offending, the nature of the material, that it was a passive distribution, and that you voluntarily deleted the material before police intervention, your personal circumstances at the time and, subsequently, your mature age and lack of any criminal history, and your low risk of reoffending. You have good prospects of rehabilitation and reformation.
Those matters, along with the impact of the recording of a conviction will have on your economic or social wellbeing or chances of finding employment have been taken into account in exercising the discretion whether or not to record a conviction in this case and the effect that the recording of a conviction will have on your rehabilitation and that you are required in any event to disclose the fact of your conviction to the regulatory body if you should action an intention to engage in work as a radiographer in the future.
In all those circumstances, I intend to make a probation order. The effect of the order is that you are to be released under the supervision of an authorised Corrective Services Officer for a period of two and a-half years. The mandatory requirements are set out in section 93(1) of the Penalties and Sentences Act. There will be additional requirement that you are to submit to such medical, psychiatric and psychological treatment as directed.
No conviction was recorded. As I said at the outset, it is unusual for there to be a finding of exceptional circumstances in cases such as this. One of the matters, which his Honour the sentencing judge had regard to, in addition to those which I have already mentioned, was the report of a psychiatrist, Dr Beech. His Honour, in sentencing the respondent, referred to passages of that report. The Tribunal considers that those passages are relevant in the disposal of this matter. In his report, Dr Beech, among other conclusions and opinions, stated:
In my opinion, the gestalt of the (respondent’s) description of his emotional state in that 2014-2018 period indicates the development of an adjustment disorder with depressed and anxious mood. This adjustment disorder was the psychological and emotional response to the multiple stressors he faced and its impact on his psychological wellbeing, interaction with others, and work performance. Although he may have seen various medical practitioners through this period, it does not appear to have been any substantial counselling for his own wellbeing. He may have been vulnerable to those emotional difficulties as a result of his own childhood circumstances. But realistically, I think it is reasonable to accept that his emotional responses were understandable given his circumstances at that time.
There is no antecedent forensic history and no indication of an anti-social personality. I do not think there are indications of a personality disorder per se despite the severity of his psychological and emotional reactions. There is nothing to indicate a substance use disorder. There have been limited adult personal relationships and throughout there is a theme of a lack of support although he cites his sister and to some extent his former wife. He has supported himself throughout his life up until the time of his arrest was working full-time as a radiographer. These days, he has better insight into his difficulties. Matters have settled somewhat with the passage of time, his daughter's surgical transition, and his retirement.
If the Court accepts [PTP's] explanation for his behaviour, then in my opinion there is minimal risk of "re-offending".
…
The Tribunal would also observe that a number of the stressors addressed in the psychiatrist’s report were also addressed in a letter, which was tendered during the sentencing proceedings by his ex-partner. In proceedings such as this, it is important to bear in mind that the findings and the orders made by this Tribunal are not to be of a punitive nature. The respondent has already been punished for his criminal activity. That said, matters of deterrence and denunciation loom particularly large in cases such as this.
Before I go on further to deal with that issue, it ought be noted that the respondent resigned on 25 October 2018 from his position at Queensland Health, citing health issues. On 30 November 2018, he failed to renew his registration and became unregistered and remains unregistered as at this date. That is, he has not been practising for a period of just over four years. Since resigning, it would appear that sometime in 2019, the respondent began to receive a total and permanent disability superannuation payout, which was related to diabetes and complications.
There seems to be some tension as between the health situation of the respondent to which has just been referred and the fact that in the submissions before the sentencing judge it was indicated that he would like to return to the workforce. The fact that he is on a total and permanent disability superannuation payout suggests that he may not return to the profession at all.
That does not mean, however, that any period of disqualification would be purely academic and to no effect and therefore ought not be made. As has already been said, any orders made by the Tribunal in cases such as this need to send an appropriate message of deterrence and, also having regard to this type of offending, a message of general denunciation.
There was no controversy in respect of the proposed orders contended for on behalf of the Health Ombudsman, save for that dealing with the period of disqualification. It was submitted that the respondent ought be disqualified from applying for registration for a period of 18 months to two years. On balance, the Tribunal has reached the conclusion that that period of disqualification is unnecessarily harsh and, on balance, has decided that a period of 12 months is more appropriate. Here, the Tribunal notes Ms Townsend’s concession that the applicant would not be displeased with a disqualification period of 12 months.
In reaching that conclusion concerning the period of disqualification, the following matters were found to be of particular significance for this 52-year-old man. First, the extraordinary personal circumstances which surrounded the respondent at the time of his offending. Second, his low risk of reoffending. Third, his level of co-operation with the administration of justice. Fourth, and this is associated with the first of the matters which have been referred to, his mental health at the time of offending rendered him more vulnerable at that time than might otherwise have been the case. Fifth, the probation orders imposed included specific requirements in regard to appropriate psychiatric and psychological treatment, as considered necessary.
It is also noteworthy that those probation orders still have in excess of 20 months to run. Unfortunately, though the Tribunal has no information about whether he has attended any counselling as a consequence of those orders, it is noted that he had previously attended counselling, but no further information is available. Another matter that seemed to be particularly relevant was the fact that he had no prior criminal history and, as serious as the offending is, it sits at the lower end of this type of offending. Finally, the Tribunal will proceed on the same basis as the sentencing Court, namely, that the respondent has expressed remorse for his actions and has had insight into the consequences of this type of offending.