Health Ombudsman v Vu

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.