Health Ombudsman v Trotta - [2019] QCAT 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Trotta [2019] QCAT 161

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

GIUSEPPE DOMENICO TROTTA

(respondent)

APPLICATION NO/S:

OCR163-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:
Mr P Cattach
Mr M Halliday
Dr A Jones

ORDERS:

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

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent.

3. Pursuant to s 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 three years, four months.

4. Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service in a clinical or non-clinical capacity (paid or otherwise) to any female persons and to any male persons under the age of 18 years.

5. Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – where the applicant instituted disciplinary proceedings against the practitioner in relation to criminal convictions – where the criminal convictions related to conduct including the covert recording of female patients attending the practitioner’s physiotherapy practice – where the practitioner accepts that the conduct amounts to professional misconduct – where the parties have reached a joint position as to sanction – whether the sanction proposed is appropriate

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Qld), s 5

Medical Board of Australia v Fitzgerald [2014] QCAT 425
Medical Board of Australia v Martin [2013] QCAT 376
Medical Radiation Technologists Board of Queensland v Groves [2010] QCAT 528
Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323
Pharmacist Board of Queensland v Gordon [2010] QCAT 181

REPRESENTATION:

Applicant:

Director of Proceedings, on behalf of the Health Ombudsman

Respondent:

Apel Solicitors & Notary

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

The respondent was a registered physiotherapist during 2009 to 2015 when he covertly video recorded female patients of his practice, including children, undressing in the treatment room of his practice and when he made “up skirt” videos of other women in 2011 at a shopping centre. The respondent made such recordings for his own sexual gratification. The respondent was convicted of criminal offences constituted by his conduct and imprisoned. The respondent is no longer registered as a physiotherapist or practising as a health practitioner. The applicant has referred this matter to the Tribunal pursuant to ss 103 and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The parties have filed a statement of agreed facts and joint submissions. There…

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: [2019] QCAT 161
Decision Date: 16 July 2019

CaseChat Overview and Summary

The Health Ombudsman initiated disciplinary proceedings against Mr Trotta, a registered physiotherapist, following his criminal convictions for covertly recording female patients during physiotherapy sessions. The Tribunal was tasked with determining whether the proposed sanction was appropriate in light of Mr Trotta's admission of professional misconduct. The primary legal issues revolved around the nature of the misconduct and the appropriateness of the proposed sanctions in the context of the Health Ombudsman Act 2013 (Qld). The Tribunal considered the gravity of the misconduct, the need for public protection, and the principles of proportionality and deterrence in deciding the appropriate disciplinary measures.

The Tribunal found that Mr Trotta's conduct amounted to professional misconduct, given the serious invasion of patient privacy and the breach of trust inherent in his actions. The parties had negotiated a joint proposal for sanctions, which the Tribunal reviewed to ensure they were commensurate with the misconduct. The Tribunal accepted the proposed sanctions, which included a reprimand, a three-year, four-month disqualification from applying for registration, and a permanent prohibition on providing services to female patients and male minors. The Tribunal concluded that these sanctions were appropriate to uphold the integrity of the profession, protect the public, and deter similar conduct in the future.

In light of the findings and the joint proposal, the Tribunal issued its orders. Mr Trotta was reprimanded and disqualified from applying for registration for three years and four months. Additionally, he was permanently prohibited from providing health services to female patients and male minors. Both parties were ordered to bear their own costs. The decision underscored the importance of maintaining professional standards and protecting patient privacy within the healthcare sector.

Orders

Orders of the court

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

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent.

3. Pursuant to s 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 three years, four months.

4. Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service in a clinical or non-clinical capacity (paid or otherwise) to any female persons and to any male persons under the age of 18 years.

5. Each party bear their own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Trotta [2019] QCAT 161
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
GIUSEPPE DOMENICO TROTTA (respondent)
APPLICATION NO/S:	OCR163-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	16 July 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President Assisted by: Mr P Cattach Mr M Halliday Dr A Jones
ORDERS:	1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent. 3. Pursuant to s 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 three years, four months. 4. Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service in a clinical or non-clinical capacity (paid or otherwise) to any female persons and to any male persons under the age of 18 years. 5. Each party bear their own costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – where the applicant instituted disciplinary proceedings against the practitioner in relation to criminal convictions – where the criminal convictions related to conduct including the covert recording of female patients attending the practitioner’s physiotherapy practice – where the practitioner accepts that the conduct amounts to professional misconduct – where the parties have reached a joint position as to sanction – whether the sanction proposed is appropriate Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107 Health Practitioner Regulation National Law (Qld), s 5 Medical Board of Australia v Fitzgerald [2014] QCAT 425 Medical Board of Australia v Martin [2013] QCAT 376 Medical Radiation Technologists Board of Queensland v Groves [2010] QCAT 528 Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323 Pharmacist Board of Queensland v Gordon [2010] QCAT 181
REPRESENTATION:
Applicant:	Director of Proceedings, on behalf of the Health Ombudsman
Respondent:	Apel Solicitors & Notary
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).