Health Ombudsman v XPW - [2021] QCAT 403

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v XPW [2021] QCAT 403

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

XPW

(respondent)

APPLICATION NO/S:

OCR192-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 December 2021

HEARING DATE:

2 June 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Dr J Quinn AM
Dr J Cavanagh
Ms A Blair

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 health practitioner for a period of 12 months.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical practitioner – where the respondent pleaded guilty to offences of making child exploitation material and possessing child exploitation material – whether such conduct should be characterised as professional misconduct – what sanction should be imposed

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an interim non-publication order was made to avoid endangering the respondent’s mental health – whether the non-publication order should continue to have effect

Health Ombudsman Act 2013 (Qld), s 66, s 103, s 104

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Craig v Medical Board of South Australia (2001) 79 SASR 545
Health Ombudsman v Asinas; Asinas v Medical Board of Australia [2021] QCAT 306

Health Ombudsman v Franklin [2021] QCAT 186
Legal Services Commissioner v McLeod [2020] QCAT 371
Legal Services Commissioner v Yarwood [2015] QCAT 208
Medical Board v Black (Review and Regulation) [2016] VCAT 892

Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77

APPEARANCES & REPRESENTATION:

Applicant:

C J Lloyd of the Office of the Health Ombudsman

Respondent:

R M O’Gorman instructed by HWL Ebsworth

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against the respondent, pursuant to sections 103(1)(a) and 104) of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman.
The respondent is aged 60 years. He is an experienced medical practitioner, having obtained the degree of Bachelor of Medicine and Bachelor of Surgery in his country of birth in 1984.
The conduct the subject of the referral did not occur in the course of the respondent’s practice as a medical practitioner. The conduct involved the commission of criminal offences involving child exploitation material (CEM).
The parties agree as to the facts of the conduct the subject of the referral, that the conduct should be characterised as professional misconduct and that the respondent should be reprimanded. The real issue in dispute is whether the respondent, who has…

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: [2021] QCAT 403
Decision Date

CaseChat Overview and Summary

In this matter, the Queensland Civil and Administrative Tribunal (QCAT) was asked to determine whether the respondent, a medical practitioner, engaged in professional misconduct warranting disciplinary action. The Tribunal found that the respondent's conduct constituted professional misconduct, given the nature of the criminal offences committed, which involved making and possessing child exploitation material. The respondent had engaged in detailed and disturbing text message exchanges with a registered nurse about sexually abusing fictional children, as well as saved a graphic document describing the rape of a 12-year-old girl. This conduct was deemed to be substantially below the professional standards expected and inconsistent with being a fit and proper person to hold medical registration.

Considering the purposes of sanction, including protection of the public, maintenance of professional standards, and deterrence, the Tribunal decided on a reprimand and a disqualification from applying for registration as a health practitioner for 12 months. The Tribunal acknowledged mitigating factors such as the respondent's cooperation with authorities, voluntary cessation of practice, and remorse. However, it concluded that a period of preclusion from practice was necessary to achieve the protective purposes of sanction. The Tribunal also upheld the continuation of a non-publication order to avoid endangering the respondent's mental health.

Orders