Health Ombudsman v Shetty

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Shetty [2020] QCAT 143

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

HARISH SHETTY

(respondent)

APPLICATION NO/S:

OCR170-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

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

2. Pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order dated 19 August 2015.

3. Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.

4.   Both parties must bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – respondent an unregistered health care professional – respondent a massage therapist – respondent had been convicted of sexual offences against a patient who attended for massage therapy – respondent did not take part in the proceeding – whether Tribunal should make an order permanently prohibiting the respondent from providing any health service

Health Ombudsman Act 2013 (Qld) s 8, s 103, s 113.

Health Ombudsman v Costello [2016] QCAT 117
Health Ombudsman v Kirk [2019] QCAT 301
Health Ombudsman v Newman [2019] QCAT 397
Health Ombudsman v MacBean [2019] QCAT 300

REPRESENTATION:
Applicant:	The Office of the Health Ombudsman
Respondent:	The respondent was not represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. At the time relevant to this proceeding, July 2015, the respondent was providing massage therapy services. He was therefore providing a health service, that is, a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing: s 7(1). So he was a health service provider, and a health practitioner: s 8. There was however no requirement under the Health Practitioner Regulation National Law (Qld) for him to register under that Law, since massage therapy is not a health profession for the purposes of that Law: s 5.[1] 

   [1]The practical effect of that is that I can deal with this matter without the assistance of assessors: s 126. 

2. On 31 March 2017 the respondent was convicted after a trial in the District Court of two counts of sexual assault, both committed on the same person on 20 July 2015.  At the time the assaults were committed, the respondent was providing massage therapy to the complainant, in the form of a full body massage.  The respondent was sentenced to a term of imprisonment, suspended at the half…