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Office of the Health Ombudsman v Costello  QCAT 117
Office of the Health Ombudsman
Christopher Paul Costello
Occupational regulation matters
On the papers
Hon JB Thomas, Judicial Member
16 May 2016
PROFESSIONS AND TRADES – HEALTH PRACTITIONER – unregistered health practitioner – referral by health ombudsman – sexual misconduct with patient – prohibition order – nature of order discussed – whether perpetual in effect – whether future review of matter available – costs
Acts Interpretation Act 1954 (Qld) s 24AA Health Ombudsman Act 2013 (Qld) ss 68, 73, 74, 96(2), 103(1)(a), 113, 113(2), 113(4), 114, 115, 116
Health Ombudsman Regulation 2014 (Qld) r 5(b)
Health Practitioner Regulation National Law Act 2009 (Schedule) (Qld) s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 59, 132
Medical Board of Australia v Fitzgerald  QCAT 425
Represented by Ms Liza Marshall, counsel
Represented by Ms Lily Marinovic, solicitor
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- This is a proceeding upon a referral from the Director of the Office of the Health Ombudsman under section 103(1)(a) of the Health Ombudsman Act 2013 (Qld) (“the HO Act”).
- The respondent at all material times was employed and practised as an aboriginal health worker. He was not a registered health practitioner under the National Law. Notwithstanding this, he meets the definition of “health practitioner” in s 8(a)(ii) of the HO Act as he was an “… individual who provides a health service”.
- The HO Act created a new jurisdiction for the QCAT Tribunal in respect of health disciplinary proceedings involving unregistered health practitioners. Section 96(2) of that Act recognises that the Tribunal has power to make orders against such persons.
- The orders that may be made on such a referral are contained in sections 112 – 116 of the HO Act, and, most relevantly for present purposes, section 113. That section contemplates a making of a “prohibition order” which may be made when “because of the health practitioner's health, conduct or performance, the practitioner poses a serious risk to persons”.
- Such an order may impose restrictions upon the practitioner's provision of such services, or may simply prohibit the practitioner from providing health services at all.
- The present proceedings are based upon an alleged misconduct by the respondent of a serious sexual nature relating to a patient.
- An unconditional prohibition order is sought from this Tribunal under section 113 of the HO Act, which would prohibit him from providing any health service. It is prima facie perpetual in operation.
- In 2003, the respondent obtained a certificate III in Aboriginal Health Care from the former Queensland Aboriginal and Torres Strait Islander Corporation for health education and training.
- In February 2012, he obtained employment as a casual Aboriginal health worker at Murri Health Group in Caboolture. His duties consisted of conducting health checks on new patients.
- On the occasion in question, 10 April 2013, he engaged in serious sexual misconduct with a male patient.
- It is not necessary to recount the full particulars of what occurred. The patient in question, patient X had previously met the respondent on two occasions when X’s wife and children had attended the clinic for health checks. This was patient X’s first attendance at Murri Health for a health check.
- Having performed various tests including taking a urine sample and blood pressure tests, the respondent noted that the patient had traces of blood in his urine.
- What ensued was an increasingly venturesome series of acts of sexual exploration of the patient’s testicles and then penis, with obvious attempt at stimulation.
- Eventually the respondent sat on a chair and asked the patient to stand in front of him. He leaned forward and put his mouth over the patient’s penis three or four times. When asked by the patient “What’s this about?” he advised, “I just need to try and get some fluid out to see where the blood is coming from”.
- This was followed by the respondent giving the patient a key to the toilet and directing him to go to the toilet block stating that he would meet him there, which he did about 5 minutes later.
- The respondent asked the patient to remove his underwear and the patient complied. He placed his mouth over the patient’s penis approximately twice.
- At this point, the patient pulled back and said, “What’s this all about? I’m not gay.” The respondent replied, “This is what I thought you wanted”. The patient responded, “No mate, I came here for a medical check I’m not gay”. The respondent replied, “No, no you’re not gay. We’ll leave it at that, just don’t say anything.”
- Within 24 hours, the patient had complained to his mother, to the police and to Murri Health. When interviewed by his employer about the incident the respondent gave an untrue self-serving version of events.
- On 15 April 2013, he was charged with 2 counts of sexual assault.
- On 23 September 2014, he appeared in the District Court and was sentenced to 18 months imprisonment to be suspended for a period of 2 years after serving a period of 3 months.
- It is accepted by both parties that the patient gave the respondent no encouragement to act as he did, and that his slowness to challenge the acts of the respondent was based upon his assumption of normal procedure and clinical need.
- On 23 January 2015, the Health Ombudsman took immediate action against the practitioner, and under section 68 of the HO Act made an interim prohibition order prohibiting the respondent from practising as an Aboriginal health worker or in any health service. He has not practised since this time.
- The parties have filed an agreed statement of facts and have made joint submissions, which conceded that it is appropriate that a prohibition order be granted. Notwithstanding this, the matter of an appropriate sanction remains at the discretion of the Tribunal.
- Ordinarily the Tribunal will not depart from a sanction that both parties accept unless it is outside what might be regarded as “the permissible range”. However, the order here sought is a total prohibition from providing any health service, and it is prima facie perpetual. It is therefore a case where the Tribunal needs to be satisfied that the proposal is appropriate.
- The initial question is whether the respondent “poses a serious risk to persons”.
- Section 113(2) gives illustrations and non-exclusive examples of conduct that may be regarded as posing a serious risk to a person. They include "engaging in a sexual or improper personal relationship with a person".
- There are two main factors suggesting that the respondent does "pose a serious risk to persons". One is the very nature of his conduct, and the other is his mental disorder. The risk to the public in permitting him to once more become a health service provider is considerable.
- A psychologist's report diagnoses the respondent as having a major depressive disorder, severe mood congruent psychotic features, with a secondary diagnosis of unresolved, untreated, moderate to severe post traumatic stress disorder with dissociative symptoms. The report includes the fact that the respondent was himself sexually abused as a child by a family member and has experienced difficulties with his sexuality.
- Irrespective of his error in thinking that his patient was sexually responsive, he showed a willingness to use his workplace and calling as a trolling site. This was a fundamental and alarming breach.
- This is, I think, a fairly obvious case for a finding that he poses a serious and unacceptable risk under section 113 of the HO Act, with or without reliance upon any “prescribed conduct document” applicable to health care rights. Such documents of course condemn sexual misconduct of that kind, and so does common sense. Conduct of this kind by a health worker simply cannot be tolerated. Vulnerable people need protection from such depredations.
- Whether his conduct is surveyed from the standpoint of poor character or absence of self-control, the risk of harm in further contact between him as a health service provider and members of the public is too great to contemplate his return to any practice of this kind.
- It was submitted that similar principles applied to an unregistered practitioner as those that apply to a registered practitioner. Of course, higher professional expectations may exist according to the position, status and nature of the profession or calling of the practitioner in question, but the breach in this case was of an elementary kind and was unacceptable at any level of health service provision.
- It was also submitted that deterrence is particularly important in matters concerning unregistered practitioners, where the practitioner does not need to hold membership with a peak body in order to practice. Such persons are not subject to oversight from a registration body, and for that reason, sanctions that will deter like-minded individuals from similar conduct are desirable. I fully accept those submissions.
- I also acknowledge as particularly helpful the joint submissions from the legal representatives of the parties.
- In mitigation, a certain level of insight and remorse appear from the respondent’s cooperation with the Health Ombudsman Office, and one can sympathise with his background and psychiatric condition. However, the psychiatric abnormality is a two-edged factor in a case of this kind. He still suffers from untreated mental health disorders and there is no evidence suggesting their future elimination.
- As this is a new jurisdiction, there are no comparative cases to provide guidance on what is often termed in this jurisdiction as "the level of sanction".
- Reference was made to a number of decisions in QCAT, decisions in other jurisdictions, and to determinations by the Health Care Complaints Commission (HCCC) involving "sexual boundary violations" by unregistered practitioners. Most of the matters concerned registered practitioners. The cases ranged through matters involving masseurs to medical doctors. They revealed a range of periods during which the practitioner was effectively barred from practice. The periods ranged from two years to permanent prohibition. However, they do not provide much guidance as to the appropriate response here.
- The evidence in the present matter does not permit any finding or even the formulation of any impression of when, or if it might, become safe for the respondent to practise after any particular or determinate period. The very nature of his offending and the fact that he continues to suffer from untreated serious mental disorders satisfy me that it is appropriate to impose a prohibition without any stated limitation.
- Before making an order such as the one sought it is necessary to understand the implications of such an order.
- A prohibition order supersedes any Interim Protection Order (“IPO”) under section 68 of the HO Act. An IPO is in any event, subject to review by QCAT under sections 73-74 of the HO Act. However, no provision is made for review of QCAT's final prohibition order under section 113.
- A prohibition order made under s 113(4)(a) simply prohibits the practitioner from providing any health service, and is prima facie unlimited. A more qualified form of order is available under section 113(4)(b) "imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner", but in the present case an unlimited order is sought under s 113(4)(a). The HO Act does not provide for any future review process.
- Such an order is a specific remedy reposed in QCAT by the HO Act. It is in the nature of an injunction, which is a traditional Court remedy that forbids or commands a person to do something. QCAT has explicit power to order injunctions, and they are enforceable in the Supreme Court. What is sought here is a permanent order – in effect a life sentence.
- While such an order subsists, a former practitioner has no right to seek any registration in the health industry and is precluded from unregistered practice in any form. Contravention of a prohibition order is an offence which attracts a severe financial penalty.
- In my view however, there is a possible avenue for review by QCAT itself if there were a sufficient change of circumstance. In the seemingly unlikely scenario that the respondent became "fit" enough to be again trusted as a health worker, and sought amendment of the original order, it is strongly arguable that QCAT retains jurisdiction to grant relief from its original order, or to amend it.
- As noted above, there is no provision in the HO Act for future review of a prohibition order. But s 24AA of the Acts Interpretation Act 1954 (Qld), provides the following:
"Power to make instrument or decision includes power to amend or repeal
If an act authorises or requires the making of an instrument or decision –
- the power includes power to amend or repeal the instrument or decision; and
- the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision."
- QCAT would therefore seem to have the power to amend such a decision. If it has that power, it has the jurisdiction to entertain an application for such relief. Such a procedure sits comfortably with the analogy of a prohibition order and an injunction that is subject to future supervision by a Court or Tribunal, and which normally would operate "until further order".
- In order to return to employment as a health practitioner a person in the position of the respondent would need to apply to QCAT for relief from, or for variation of the order, and a heavy onus would lie on him to show the Tribunal that there was no longer any unacceptable risk to patients or others with whom he would come into contact in such work.
- Subject to that, an unqualified prohibition order under section 113(4)(a) of the HO Act is perpetual in its operation.
- Despite the prima facie unlimited effect of an order under s 113(4)(a), there is no proper basis upon which a more limited form of order could be imposed in the present case.
- The parties agreed that each would bear their own costs in this matter. There does not seem to be any empowering provision to award costs under the HO Act, and this Tribunal's power to make any order for costs would seem to be limited to that conferred by division 6 of part 6 of the QCAT Act (i.e. sections 100 - 109). It is however unnecessary to pursue this point in the present matter.
- The Tribunal orders as follows:
- (1)Pursuant to subsection 113(4) of the Health Ombudsman Act 2013 (Qld), Christopher Paul Costello is prohibited from providing any health service.
 Health Practitioner Regulation National Law Act 2009 (Schedule) (Qld) (“the National Law”), definition s 5.
 Commencing date for most provisions 1 July 2014.
 Medical Board of Australia v Fitzgerald  QCAT 425 at .
 HO Act s 113(1).
 HO Act s 288 together with Regulation 5(b) of the Health Ombudsman Regulation 2014 (Qld) makes the “Australian charter of health care rights” a prescribed conduct document. which provides guidance about the standard of services that should be provided by a health service provided. See exhibit E to the joint submissions.
 QCAT Act s 59.
 Ibid, s 132.
 HO Act s 115.
- Published Case Name:
Office of the Health Ombudsman v Christopher Paul Costello
- Shortened Case Name:
Office of the Health Ombudsman v Costello
 QCAT 117
16 May 2016