Health Ombudsman v Yap - [2024] QCAT 425

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Yap [2024] QCAT 425

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

TOM SUN YAP

(respondent)

APPLICATION NO/S:

OCR300-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Prof P Baker, Medical Practitioner Panel Member
Dr J Phipps, Medical Practitioner Panel Member
Mrs K Thomson, Public Panel Member

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the conduct of the respondent in allegation 1 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 section 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of eight years.

5. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration order imposed by the Health Ombudsman on 15 June 2022 is set aside.

6. There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — where the respondent was convicted of offences involving child abuse and exploitation material — where the respondent was a paediatrician during the offending period — whether the conduct constitutes professional misconduct — what is the appropriate sanction where the respondent has professed an intention not to return to practise — where the respondent is disqualified from applying for registration

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Asinas; Asinas v Medical Board of Australia [2021] QCAT 306

Health Ombudsman v Creagh-Scott [2019] QCAT 69

Health Ombudsman v Franklin [2021] QCAT 186

Health Ombudsman v Greenland [2022] QCAT 421

Health Ombudsman v Mak [2019] QCAT 24

Health Ombudsman v YDU [2023] QCAT 493

Medical Board of Australia v Yu (No 2) [2021] SACAT 45

Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97

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

This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Tom Sun Yap (‘respondent’). Put briefly, this matter relates to the conduct of the respondent who was a registered medical practitioner at the time and who was convicted of criminal offences involving:
(a)the use of a carriage service to access child pornography;
(b)the use of a carriage service to transmit, make available, publish, distribute, advertise, or promote child pornography material;
(c)possessing or controlling abuse material; and
(d)possessing child exploitation material.
The respondent was convicted on his plea of guilty on 13 July 2023. The nature of the offending will be dealt with in more…

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: [2024] QCAT 425
Decision Date: 31 October 2024

CaseChat Overview and Summary

The Health Ombudsman brought proceedings against Dr Yap, a former paediatrician, following his conviction for offences involving child abuse and exploitation material. Dr Yap was registered as a medical practitioner in Queensland at the time of the offending conduct. The Health Ombudsman sought to have Dr Yap’s registration cancelled and that he be disqualified from applying for registration, as well as an order for reprimand. Dr Yap contested the proceedings but ultimately conceded that his conduct constituted professional misconduct. The court was required to determine the appropriate sanction, taking into account Dr Yap’s expressed intention not to return to practice, and the need to protect the public.

The court considered the nature and gravity of Dr Yap’s offences, which involved the sexual abuse of a child and possession of child exploitation material. The court noted that Dr Yap’s position as a paediatrician gave him access to vulnerable children and underscored the importance of maintaining high standards of professional conduct. The court further considered Dr Yap’s lack of remorse, his failure to take responsibility for his actions, and the need to protect the public. The court concluded that the appropriate sanction was a reprimand, cancellation of registration, and a prohibition on applying for registration for eight years.

In light of Dr Yap’s concession that his conduct constituted professional misconduct, the court found that his registration should be cancelled and that he should be disqualified from applying for registration for a period of eight years. The court also ordered that Dr Yap be reprimanded. The court set aside the immediate registration order imposed by the Health Ombudsman, as it was not necessary given Dr Yap’s concession. There was no order as to costs.

The final orders of the court were that Dr Yap’s conduct in allegation 1 constituted professional misconduct, that he be reprimanded, that his registration be cancelled, and that he be disqualified from applying for registration for eight years. The immediate registration order imposed by the Health Ombudsman was set aside, and there was no order as to costs.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the conduct of the respondent in allegation 1 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 section 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of eight years.

5. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration order imposed by the Health Ombudsman on 15 June 2022 is set aside.

6. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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