Medical Radiation Technologists Board of Queensland v Hennig

[2010] QCAT 609

CITATION: Medical Radiation Technologists Board of Queensland v Hennig  [2010] QCAT 609

PARTIES:	Medical Radiation Technologists Board of Queensland  (Applicant)
v
Jordan David Hennig (Respondent)

APPLICATION NUMBER:   OCR180-10  

MATTER TYPE: Occupational Regulation

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:	Judge Fleur Kingham Deputy President Assisted by Assessors: Mr  M Buckley Ms L Cross Mr G Rattray
DELIVERED ON:	26 November 2010
DELIVERED AT:	Brisbane

ORDERS MADE:

1. The respondent’s registration is cancelled.

2. The respondent is not entitled to apply for registration until:

   a)    His probation order, made on 19 November 2009 has expired;

   b)    The respondent has undertaken counselling with a clinical psychologist (‘the counsellor’), nominated by the respondent and approved in writing by the applicant. The purpose of the counselling is to facilitate the respondent developing insight into why he engaged in the criminal behaviour which is the subject of these proceedings (‘the criminal behaviour’). The counselling must continue until the counsellor forms the opinion further counselling is unnecessary for that purpose;

c)    The respondent has provided to the applicant a certificate of the counsellor that further counselling is unnecessary;

d)    The respondent has provided to the applicant a report by Peter Jordan, psychologist, or another psychologist, nominated by the respondent and approved in writing by the applicant, which assesses the likelihood of the respondent engaging in behaviour similar to the criminal behaviour in the future. The assessment must not be made before the counsellor has provided the certificate referred to in paragraph 2(c).

1. The following conditions must be imposed upon any future registration of the respondent for a period of 12 months (in addition to any conditions the applicant may impose):  

   a)    The respondent must actively participate in a mentoring program which involves the following:

   i.The mentor must be a person registered under the Medical Radiation Technologist Act 2001 who is of sufficient experience and maturity and who gives written consent to act as the respondent’s mentor;

   ii.The respondent must nominate and the applicant must approve the mentor in writing;

   iii.The respondent and mentor must meet at least monthly, the first meeting to take place within one month of restoration of the respondent’s registration.

   iv.The focus of the mentoring relationship is not on technical competence but on ethical conduct and professional responsibilities;

   v.The respondent must provide the mentor with a copy of these orders and his written authority for the mentor to report to the applicant after 12 months about the respondent’s appreciation of the relationship between his criminal behaviour and his professional responsibilities.  

   b)    That the respondent must provide a copy of these orders and a written authority to his employer, within 7 days of commencing employment, to provide a written report to the applicant about the respondent’s fitness and competence to practice on the following occasions:

   i.At intervals of 3 months from the commencement of his employment;

   ii.If the employer holds a concern about the respondent’s fitness or competence to practice; and

   iii.If requested by the applicant.

   c)    That the respondent must, within 5 business days of gaining employment, notify the applicant in writing of the name and address of the employer, the address of his place of employment and the name and contact telephone number of his supervisor at the place of employment.

   d)    That the respondent must notify the applicant within 5 business days of a change in any of the details required pursuant to paragraph 3(c) of these orders.

2. All costs and expenses in relation to the matters set out in paragraphs 2 and 3 are to be paid by the respondent including, but not limited to, the psychological assessment and provision of a report by the psychologist to the applicant.

3. The respondent shall pay the applicant’s costs of these proceedings on the standard basis on the District Court scale fixed in the sum of $6,000.00, by way of monthly instalments of $100.00 for the period of 12 months from the date of these orders and thereafter by monthly instalments of $300.00. In the event the respondent fails to pay any monthly instalment, the full amount of the costs remaining unpaid shall become immediately due and payable.

4. Liberty to apply on giving not less than seven (7) days notice to the other party.

CATCHWORDS : 

HEALTH PRACTITIONER – GROUND FOR DISCIPLINARY ACTION – where registrant convicted of indictable offence –

HEALTH PRACTITIONER – CONDITIONS OF APPLICATION FOR REGISTRATION – where victim of offending conduct was a work colleague – where nature of profession involves contact with patients where registrant lacked insight into offending –  

Evidence Act 1977 s79(2)(3)

Health Practitioners (Professional Standards) Act 1999 s124(1)(i)

Adamson v Queensland Law Society Incorporated [1990] Qd R 498 at 507

Council of the Law Society of NSW v A Solicitor [2002] NSWCA 62 AT [80]

Mercer v Pharmacy Board of Victoria [1968] VR 72

Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423

REASONS FOR DECISION

1. Mr Hennig pleaded guilty to the offence of unlawfully stalking a work colleague over a 6 month period. He embarked on an elaborate deception of his colleague, a nurse who was also an acting student. He created a false identity, a female, by establishing a website, email address and telephone number. He approached the complainant with offers of work as a model. Over time, he won her trust and engaged in increasingly intimate communications with her. He lured her into revealing intimate details about her life and procured nude and sexually explicit photographs of the complainant.

1. He was sentenced in November 2009, fined and placed on probation for 2 years. The Board suspended his registration pending the outcome of these proceedings. Conviction of an indictable offence, as this offence is, is a ground for disciplinary action (s124(1)(i))[1].

   [1]        Health Practitioners (Professional Standards) Act 1999 s124(1)(i)

1. Mr Hennig pleaded guilty and the conduct can be taken as established by his admission[2]. He has co-operated with the Board in these proceedings and has admitted the statement made by the complainant to the police is true.

   [2] Evidence Act 1977 s79(2)(3)

1. The Board alleges his conduct is:

(a)     Professional conduct of a lesser standard than that which might reasonably be expected of Mr Hennig by the public or his professional peers;

(b)     Infamous conduct in a professional respect;

(c)     Misconduct in a professional respect;

(d)     Conduct discreditable to the registrant’s profession.

1. Although much of Mr Hennig’s offending did not take place in the course of his duties as a radiographer, he did instigate the electronic communications through a work computer. His target was a work colleague, and in committing his offence he exploited information he obtained in the workplace.

1. The concept of professional conduct extends to conduct outside the course of practice which manifests the presence or absence of qualities that are incompatible with, or essential for, the conduct of practice[3].

   [3]        Council of the Law Society of NSW v A Solicitor [2002] NSWCA 62 at [80]

1. Here there is a clear and direct link to his practice, albeit the conduct itself was not directly in the practice of his profession.

1. It could hardly be contested that the obligation of professional conduct extends to workplace relations. The public and Mr Hennig’s professional peers would reasonably expect he would not exploit information obtained in the course of his professional practice to commit a criminal offence against a colleague.

1. Although the complainant was a member of a different profession, there is no reason to limit the expectation of professionalism in workplace relations to members of the same profession.

1. Mr Hennig’s peers would reasonably regard his conduct as dishonourable and disgraceful. There is an element of shamefulness in his conduct which satisfies the requirement of infamy[4]. It falls short, to a substantial degree, of the standard of professional conduct observed or approved by peers of good repute, and, as such, is misconduct in a professional respect[5]. Likewise, it is conduct that would damage his standing in his professional capacity and is discreditable to his profession[6]. 

   [4]        Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423 at [22] – [23]

   [5]        Adamson v Queensland Law Society Incorporated [1990] Qd R 498 at 507

   [6]        Mercer v Pharmacy Board of Victoria [1968] VR 72

1. The Board and Mr Hennig have jointly submitted for orders which would result in his registration being cancelled. Further they submit he should not be entitled to apply to be registered for 9 months and then only with a favourable report from a clinical psychologist about his insight into his offending. They also propose conditions which require Mr Hennig to be mentored and more closely supervised.

1. Mr Hennig is not now fit to practice. Mr Jordan, a clinical psychologist, reported that Mr Hennig’s insight into his behaviour is still limited. Mr Hennig attributes his conduct to what he says is his addiction to pornography. While Mr Jordan accepts he does labour under an addiction, he also considers Mr Hennig has had inadequate treatment to fully understand the psychological context for his conduct. Mr Henning understood his conduct was wrong but was unable to stop himself. The stimulation and excitement he experienced overwhelmed his sense of right and wrong and his understanding that he needed assistance to stop. In fact, he only stopped when he was exposed. That indicates he currently presents a risk of further offending.

1. The conditions proposed will require a satisfactory report from Mr Jordan about Mr Hennig’s insight and the risks of further offending, before he may be registered. The Tribunal is satisfied this is appropriate to mitigate the risk Mr Hennig may present to patients or colleagues.

1. The preclusion period of 9 months is short. Mr Hennig has not practised since August 2010 and will not have been able to pursue his profession because of his offence for 12 months.  Whilst the purpose of disciplinary proceedings is not punitive, the sanction imposed serves the purpose of deterring the practitioner from further misconduct and deterring others from similar behaviour.

1. Mr Hennig is still a young practitioner (now just 27 years old). He pleaded guilty at an early stage of the criminal proceedings. In both the criminal and disciplinary proceedings his cooperation has obviated the need for the complainant to give evidence about intensely personal matters. His conduct in the proceedings does indicate his remorse is genuine. That is a positive indication of his rehabilitation.

1. Nevertheless the Tribunal does not accept the proposed period is adequate, even taking into account Mr Hennig’s youth, the support of his employer and his cooperation.  Mr Henning remains subject to a probation order until November 2011. It is more appropriate that, once Mr Henning has completed his term of probation, he may apply for registration. Successful performance of his probation conditions will provide positive evidence of his further rehabilitation.

1. The conditions that must be imposed on Mr Hennig’s registration will ensure he is mentored. The Board will also be informed by an assessment from Mr Jordan and can impose further conditions, if needed, which respond to his recommendations.

1. Mr Hennig has agreed to meet costs of these proceedings fixed at $6,000 and the Board has, reasonably, agreed to a repayment plan so this can be met over time.  Given the change to the preclusion period, the proposed repayment plan has been altered to recognise the period that Mr Hennig will not be working as a radiologist.