Health Ombudsman v Woo

[2022] QCAT 424

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Woo [2022] QCAT 424

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHAF OF THE HEALTH OMBUDSMAN

(applicant)

v

TAI LUN PACHALIS WOO

(respondent)

APPLICATION NO/S:

OCR060-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 October 2022 (ex tempore)

HEARING DATE:

28 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member R Jones

Assisted by:

Dr J Cavanagh
Professor D Morgan

Mr G Kerridge

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(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.

4. Pursuant to s 107(4)(a) of the Health Ombudsman Act2013 (Qld) the respondent is disqualified from applying for registration as a registered health practitioner for a period of 9 years from the date of this order.

5.     Each party bears its own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the practitioner was an anaesthetist, surrendered his specialist registration and is currently suspended – where pleaded guilty to two counts of sexual assault, and three counts of observations or recordings in breach of privacy – where he committed the offences against sedated patients – where the parties agreed as to characterisation of the conduct and sanction -  whether the proposed sanction is appropriate in all the circumstances  Health Ombudsman Act 2013 (Qld) ss 107, 126

Briginshaw v Briginshaw [1938] 60 CLR 336

APPEARANCES & REPRESENTATION: 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. In this matter, the applicant, the Director of Proceedings on behalf of the Health Ombudsman, is seeking certain findings and orders against the respondent, Tai Lun Pachalis Woo.  There were no parties represented during the course of this proceeding because it was agreed between them that the matter could be dealt with on the papers.  That is not entirely surprising, given the extent of the agreement in the written submissions provided on behalf of the applicant and the respondent. 

2. A brief summary of Dr Woo’s antecedence are as follows: 

   (a)he was at all material times registered under the National Law with the Medical Board of Australia;

   (b)he was at all material times an anaesthetist;

   (c)he was first registered as a medical practitioner on 14 December 2001; and

   (d)since the criminal offending that brought him before the court and this Tribunal, he has surrendered his specialist registration and his registration is currently suspended.

3. The relief sought against the respondent is as follows:

   (a)pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, in respect of allegation 1, the Tribunal decide that the respondent has behaved in a way that constitutes professional misconduct;

   (b)pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is to be reprimanded;

   (c)pursuant to section 107(3)(e) of the Health Ombudsman Act 2013, the respondent’s registration is cancelled;

   (d)pursuant to 107(4)(a) of the Health Ombudsman Act 2013, the respondent is to be disqualified from applying for registration as a registered health practitioner for a period of between seven and nine years; and

   (e)that each party is to bear their own cost of the proceedings. 

4. In the respondent’s submissions, prepared by counsel, it is said in paragraphs 2 and 3:

   The applicant seeks disciplinary orders against the respondent pursuant to section 107(2)(b) of the HO Act and also submits the following orders are appropriate:

   (a)Pursuant to section 107(3)(a) of the HO Act, the respondent be reprimanded.

   (b)Pursuant to section 107(3)(e) of the HO Act, the respondent registration be cancelled.

   (c)Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of seven and nine years.

   (d)Each party bears their own cost of the proceedings.

   The respondent does not contest the orders made.

5. That the parties agree about what findings and orders ought be made is of course a relevant factor in the consideration of this matter, but it is not determinative.  It is for the Tribunal to be satisfied as to what findings ought be made and what orders ought be made.  In this matter, the Tribunal was greatly assisted by three health assessors, one of which was chosen from the public panel of assessors and two of which were chosen from the panel of assessors for the practitioner’s profession.[1]  There was one dissenting voice about which I’ll say more in a moment.  Otherwise, the Tribunal was of the view for the reasons that follow, that the relief sought is appropriate. 

   [1]Health Ombudsman Act s 126.

6. The conduct that brings the respondent before this Tribunal can be stated in the following terms.  On 13 July 2021, he was charged with the following offences: 

   (a)three counts of sexual assault on 23 November 2020, 4 January 2021 and 15 January 2021; and

   (b)three counts of observations or recordings in breach of privacy.  That occurred on 23 November 2020, 4 January 2021 and 15 January 2021.

   At the time, the respondent declined to participate in a record of interview.  In respect of the count of sexual assault alleged to have occurred on 15 January 2021, no evidence was offered, and that charge was discontinued. 

7. The sexual assault involved two patients.  On 23 November 2020 and 4 January 2021, the two patients underwent surgery at the Toowoomba Base Hospital.  On both occasions, the respondent was the anaesthetist.  Both patients were 22 years of age or thereabouts, at the time.  The respondent indecently assaulted both of the patients while each patient was under sedation.  The respondent lifted and pulled to the side each of the patients’ hospital gown and took numerous images of the right breast of each patient.  The observations or recordings in breach of privacy involved both of those patients and one further patient, who on 15 January 2021 was undergoing surgery where the respondent was the anaesthetist.  That patient was 24 years of age.  In respect of all patients, the respondent visually recorded the patients while they were sedated, and, obviously, without their consent.

8. On 10 December 2021, the respondent appeared in the Brisbane Magistrates Court and pleaded guilty to two counts of sexual assault, which occurred on 23 November 2020 and 4 January 2021.  He also pleaded guilty to three counts of observations or recordings in breach of privacy.  For each offence of sexual assault, he was sentenced to a period of imprisonment for a period of nine months, which was wholly suspended, and he was released on the condition that he must not commit another offence punishable by imprisonment within a period of 18 months.  In respect of each of the offences of observations or recordings in breach of privacy, he was sentenced to imprisonment for a period of six months, which, again, was wholly suspended.  And, again, with an operational period of 18 months.  Convictions were recorded in respect of all of the charges. 

9. It is uncontroversial that in proceedings such as this, the applicant bears the onus of establishing that the respondent’s conduct amounts to professional misconduct, as defined by the Health Practitioner Regulation National Law (Queensland) (the ‘National Law’) and it must satisfy the Tribunal of the relevant facts and matters on the balance of probabilities, having regard to the test identified in the familiar case of Briginshaw v Briginshaw [1938] 60 CLR 336. In the respondent’s favour, this matter has been able to be dealt with, as I have said, on the papers, with the respondent making full admissions to the allegations, both in respect of the criminal proceedings and also these proceedings. That cooperation is, of course, a matter to be taken into account. There’s really no need for any further discussion about the appropriate test, in respect of the burden or onus of proof, having regard to the full and frank admissions made by the respondent.

10. There are a number of matters that are personal to the respondent and need to be considered.  These matters go to issues such as remorse, insight, the mental health of the respondent at the time and the risk of re-offending.  Those matters could be summarised as follows.

11. It is accepted by the applicant that the respondent has demonstrated insight and remorse.  It is pointed out that he entered timely pleas of guilty in the criminal proceedings, which allowed the matter to be dealt with expeditiously and without putting any of the victims through the torment of a trial.  It is submitted on behalf of the applicant that there are limitations, to use the applicant’s words, on the extent of the respondent’s insight and remorse.  Those matters are set out in paragraph 58 of the applicant’s submissions.  It is unnecessary to repeat them, here.  I would, however, observe that the Tribunal did not find those submissions particularly persuasive. 

12. During the sentencing proceedings, a report was tendered on behalf of the respondent by a psychologist, Dr Hatzipetrou.  Dr Hatzipetrou expressed a number of opinions, including to the effect that the respondent’s offending behaviour represented the emergence of aberrant sexual urges and that while the respondent was likely to form distortions and justifications for the sexually aberrant behaviour, his actions were nonetheless unjustifiable.  It was also opined that the offending behaviour was likely to be facilitated by problematic attitudes and urges regarding the permissibility of his behaviour.  Also, that the respondent did not present with paraphilia.  The doctor also observed that it was his opinion that the respondent’s mental disorder was not a causal factor, but nonetheless, was likely to have contributed to impairments in his ability, in respect of reasoning, judgment and self-regulation. 

13. It should also be pointed out that the respondent had been a highly regarded professional both in and outside the profession.  There are a number of character references by the respondent’s professional colleagues, which speak very highly of him, both in respect of his professional capacity and his private capacity.  Whilst there are a number of features which work in favour of the respondent, I should add there is no doubt that his conduct has brought enormous shame on him and, in all probability, members of his family. 

14. While these matters may work in favour of the respondent, they in no way provide an excuse for the respondent’s conduct. It is not for this Tribunal to impose orders in a punitive fashion, but there can be no doubt that there is a need for any orders made by this Tribunal to send both an appropriate message of general deterrence and also to send an appropriate message of condemnation.  Personal deterrence is of little significance in this matter, as any sanction imposed is likely to be academic.  The respondent will not return to practice.  That is not to say, though, that he may not otherwise find meaningful employment. 

15. Before proceeding further, the Tribunal should refer to a number of matters addressed in the submissions filed on behalf of the respondent.  Under the heading, Matters for Consideration, the following submissions were made:

16. As has already been observed, the Tribunal is satisfied that the respondent is truly remorseful for his offending and also fully appreciates what it involved and its potential consequences.  At page nine (9) of Dr Hatzipetrou’s report, he observes and opines:

    Dr Woo was pleading guilty to the listed offences. Dr Woo did not dispute the facts. Moreover, he did not minimise or deny these actions, He expressed regret for these actions and understood the potential impact on the victims and their families.

17. The seriousness of the conduct has been addressed in the submissions made on behalf of the applicant.  It is submitted that the respondent’s conduct was serious for reasons which included that his criminal behaviour, in sexually assaulting and taking photographs of female patients, demonstrated a serious breach of professional boundaries and a significant lack of judgment, care, ethical and moral behaviour in the practice of his profession.  Further, the conduct is particularly egregious, as it occurred while the patients were sedated and still in their hospital gowns.  They were also young and in all the circumstances, particularly vulnerable.  The conduct also reflected a most serious breach of trust, that is, the trust a patient places in his or her medical practitioner, particularly one who has the capacity to cause sedation.  It is also pointed out that this offending did not involve an isolated incident.  There were a number of offences which involved three victims.  As the submissions on behalf of the respondent accept those submissions made on behalf of the applicant can be accepted.

18. In all the circumstances, and notwithstanding the dissenting view of one of the assessors, which have been taken into account, on balance, having regard to the seriousness of the offending and the fact that there were not one, but three victims involved at different times, the orders and findings of the Tribunal are as follows:

    (a)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.

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

    (c)Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.

    (d)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 9 years from the date of this order.

    (e)Each party bears its own costs of the proceeding.