Health Ombudsman v Vu - [2021] QCAT 240

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Vu [2021] QCAT 240

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

AN THIEN VU

(respondent)

APPLICATION NO/S:

OCR077-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 July 2021 (ex tempore)

HEARING DATE:

15 July 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Jennifer Felton
Professor Suzanne Kuys

Dr Viktoria Molloy

ORDERS:

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

3. 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 three (3) years.

4. Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service involving direct contact with any patient or client until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another state or territory of Australia.

5. Pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act2013 (Qld), the Tribunal sets aside the decision of the Health Ombudsman on 4 October 2016 to issue an interim prohibition order and the decision of the Health Ombudsman on 12 March 2018 to vary the interim prohibition order.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – referral by the Health Ombudsman – where the respondent was a registered physiotherapist – where the respondent denies allegations of boundary violations – where the respondent did not appear at hearing – whether such charges are proved – whether such conduct should be characterised as professional misconduct – what sanction should be imposed for the conduct

Health Ombudsman Act2013 (Qld), s 58, s 68, s 73, s 103, s 104, s 107

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 92, s 93

Briginshaw v Briginshaw [1938] 60 CLR 336

Psychology Board of Australia v Wakelin [2014] QCAT 516

APPEARANCES & REPRESENTATION:

Applicant:

L Burgess of the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint made about An Thien Vu (Respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (Applicant). The Applicant seeks that the Tribunal find that the Respondent has behaved in a way that constitutes professional misconduct and make consequent orders by way of sanction.

Background of Respondent

The Respondent is aged 41 years and was aged 36 to 37 years at the time of the conduct the subject of the referral. Material before the Tribunal establishes that the Respondent was born in Vietnam and emigrated to Australia with his family whilst a child. He completed…

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.

Keep reading for free

Create a free CaseChat account to read Health Ombudsman v Vu and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 240
Decision Date

CaseChat Overview and Summary

The Health Ombudsman (Applicant) brought proceedings against An Thien Vu (Respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) for alleged professional misconduct on the part of the Respondent, a registered physiotherapist. The Applicant sought that the Tribunal find that the Respondent had behaved in a way that constituted professional misconduct and make consequent orders by way of sanction. The Respondent did not appear at the hearing but was served with submissions of the Applicant. The Tribunal found that the Respondent had engaged in professional misconduct and made orders by way of sanction. The Tribunal found that the Respondent had sexually assaulted the patient and other conduct amounting to professional misconduct. The Tribunal found that the Respondent had breached conditions imposed on his registration as a physiotherapist and provided false and misleading information to the Health Ombudsman (HO). The Tribunal found that the Respondent’s conduct constituted very serious professional misconduct. The Tribunal ordered that the Respondent be reprimanded, disqualified from applying for re-registration as a registered health practitioner for a period of three years, and prohibited from providing any health service involving direct contact with any patient or client until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another state or territory of Australia. The Tribunal also set aside the decision of the Health Ombudsman on 4 October 2016 to issue an interim prohibition order and the decision of the Health Ombudsman on 12 March 2018 to vary the interim prohibition order.

The legal issues for the Tribunal to decide were whether the Applicant had proved the conduct alleged in each of the charges particularised in the referral and whether such conduct as the Tribunal found established by the evidence should be characterised as professional misconduct or unprofessional conduct. The Tribunal was required to determine what sanction should be imposed for the conduct if the Applicant proved the charges.

The Tribunal found that the conduct of the Respondent in relation to charges 1, 2 and 3 was an egregious example of boundary violations in the course of the practice of physiotherapy. The conduct was calculated and protracted in the nature of grooming, pushing the professional boundaries and testing the patient’s willingness to submit to such behaviour. It was cunning and predatory behaviour. It had a serious adverse effect upon the patient. It constituted very serious professional misconduct. The Tribunal found that the Respondent’s conduct in relation to charges 4, 5 and 6 was also professional misconduct. The Tribunal found that the conduct of the Respondent with respect to each of the charges would be sufficient to meet the definition of professional misconduct. The combination of such misconduct was undoubtedly caught by each limb of the definition of “professional misconduct” in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decided that the Respondent had behaved in a way that constituted professional misconduct.

The Tribunal found that the Respondent’s conduct warranted a sanction in the form of a reprimand, a period of disqualification from applying for re-registration as a registered health practitioner, and a prohibition on providing any health service involving direct contact with any patient or client until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another state or territory of Australia. The Tribunal ordered that the Respondent be reprimanded, disqualified from applying for re-registration as a registered health practitioner for a period of three years, and prohibited from providing any health service involving direct contact with any patient or client until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another state or territory of Australia. The Tribunal also set aside the decision of the Health Ombudsman on 4 October 2016 to issue an interim prohibition order and the decision of the Health Ombudsman on 12 March 2018 to vary the interim prohibition order. The Tribunal found that the making of such an order was necessary to meet the protective purposes of sanction and the order would not go beyond what was required to meet those purposes.

Orders