Health Ombudsman v TSZ Pang Kwok

[2023] QCAT 355

[2023] QCAT 355

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REID, Judicial Member

Assisted by:
DR GLAZEBROOK
DR JAUNCEY-COOKE
MS BANWELL

No OCR 161 of 2022

HEALTH OMBUDSMAN  Applicant

v

TSZ PANG KWOK   Respondent

BRISBANE

THURSDAY, 18 MAY 2023 JUDGMENT

1. JUDICIAL MEMBER: In this matter, the respondent, who was born on 30 October 1993, committed a sexual offence that involved kissing, touching the breast, and putting his hand under a girl’s pants to touch her vagina while she was asleep, following an uncharacteristic night of heavy drinking. I say that because the material discloses that Mr Kwok does not generally drink.

2. He and others must understand that while consumption of alcohol provides a background to one’s understanding of the offence, it can in no way be considered an excuse for engaging in the conduct that he did.

3. Following the commission of that offence on the morning of 29 December 2020, Mr Kwok has, however, done what tribunals such as this hope that people who commit offences like that do.

4. The Health Ombudsman imposed conditions by way of an interim prohibition order affecting his registration on 8 October 2021. He was, effectively, precluded from working with female patients. Subsequently, on 26 October 2021, he resigned from his employment and has not worked as a nurse since that time. I understand he was then working as a registered nurse but had not yet been enrolled under the registration provisions.

5. Over the period of about a year and a half since then, he has worked both as a windsurf instructor and in the catering industry. On 11 April 2022, he was convicted of the offence of sexual assault and granted probation for a period of 12 months and ordered to perform 150 hours community service.

6. He has completed that probation in an exemplary way, as indicted in the report which had been tendered before me. In particular, he has completed the ‘Getting Started’ sexual offence program and the ‘Medium Intensity Sexual Offending Program’. He has also attended counselling with Ms Rebecca Wright. It seems to me that he is deeply remorseful for his offending, and I accept that the risk of his reoffending is low.

7. That assessment is consistent with the report of Ms Amber-Lee Johnstone, a forensic psychologist who he has seen in respect of these matters. She says it is her view that being able to continue his chosen profession will provide an ongoing sense of identity in an area where he is required to help, care, and assist others. This accords with my own assessment of the situation. In my view, the self-esteem that he will hopefully develop as a result of a return to his employment as a nurse will be a significant protective factor against the risk of reoffending in the future.

8. In Medical Board of Australia v Jansz [2011] VCAT 1026, the Tribunal set out what is described in the Health Ombudsman’s submissions as a useful guide in the approach and formulation of an appropriate sanction for matters such as these. The submissions say that in the circumstances of this case, these include:

   a)the purpose of the disciplinary proceedings is to protect the public;

   b)determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;

   c)determinations should in no way be punitive;

   d)the likelihood of recidivism;

   e)the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct, by general deterrence, that is the deterrence of other practitioners minded to conduct themselves similarly and by facilitation of rehabilitation on the part of the practitioner;

   f)personal matters such as shame, personal ordeal and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.

9. I accept those submissions. I note, also, the submissions of counsel for the respondent in this matter at paragraphs 20 to 27 where he sets out significant matters that count in mitigation. In particular, I am influenced by counsel’s observations of the offending and that the conduct occurred before the respondent was a registered practitioner, did not involve any connection with his professional duties, workplace, or colleagues, and were an aberration.

10. I accept those submissions. The only issues between the parties concerns whether or not a suspension for a period of six months, as sought by the Health Ombudsman, be imposed. The parties were in agreement that the conduct constituted professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act2013 (Qld), that pursuant to subsection (a) of section 3 of that section a reprimand would be imposed and, further, that the interim prohibition imposed by the Health Ombudsman on 8 October 2021 should be set aside. I make those orders.

11. In my view, and that of the assessors sitting with me, is that in the particular circumstances of this case it is not appropriate to further suspend the respondent’s registration. That is not to say that other health professionals who commit sexual offences such as Mr Kwok has done here should not expect a significant period of suspension and even disqualification.

12. I am particularly mindful of the matters I have referred to, including the one and a-half years he has had away from the profession, his very significant demonstrated remorse, his early plea, the approach by his completing the sexual offending courses to which I have referred, and the attending upon the psychologist. It is only because of those particular circumstances that I accede to the submissions made by counsel for the respondent.

13. In the circumstances, the orders are:

    a.a finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act2013;

    b.an order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 that the respondent is reprimanded;

    c.an order pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 that the interim prohibition order imposed by the Health Ombudsman on 8 October 2021 is set aside; and

    d.I make no order as to costs.