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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v MacBean  QCAT 300
samuel joseph macbean
Occupational regulation matters
13 September 2019
On the papers
Judge Allen QC, Deputy President
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was an unregistered health care professional – where the respondent was a massage therapist – where the applicant instituted disciplinary proceedings against the respondent – where the respondent was convicted on his own plea of guilty of various sexual offences against patients who attended upon his massage therapy business – where the parties agreed as to the facts – where there was no dispute between the parties that the appropriate order was that the respondent be permanently prohibited from providing any health service – whether the Tribunal should make an order permanently prohibiting the respondent from providing any health service
Health Ombudsman Act 2013 (Qld), s 8, s 73, s 103, s 113
Brigginshaw v Brigginshaw (1938) 60 CLR 336
The Director of Proceedings, on behalf of the Health Ombudsman
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 is a referral of a matter against Samuel Joseph MacBean (“the respondent”) pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (“the HO Act”) by the Director of Proceedings on behalf of the Health Ombudsman (“the applicant”). The applicant seeks a prohibition order pursuant to s 113(1) and (4) of the HO Act.
- The respondent is aged 47, having been born on 30 April 1972. On 1 July 2009, the respondent registered his business name, Moorooka Therapeutic Massage. He initially operated his business from his home, before relocating to premises at Beaudesert. At all material times, the respondent was a health service provider, not required to be registered under the Health Practitioner Regulation National Law (Qld) (“the National Law”) and a health service provider within the meaning of s 8(a)(ii) of the HO Act.
- The applicant contends that the Tribunal would decide that the respondent poses a serious risk to persons within the meaning of s 113(1) of the HO Act because of the following conduct which is admitted by the respondent.
- The respondent, in the course of providing massage services, committed numerous offences, including numerous offences of sexual assault against patients. His conduct resulted in him being convicted and sentenced in the District Court for numerous offences and being imprisoned. On 29 April 2016, in the District Court at Brisbane, the respondent pleaded guilty to an indictment containing 50 counts, namely:
- (a)eight counts of indecent treatment of a child under 16 years;
- (b)one count of rape;
- (c)12 counts of sexual assault;
- (d)22 counts of recording in breach of privacy;
- (e)five counts of observations in breach of privacy;
- (f)one count of possessing child exploitation material; and
- (g)one count of carrying on a regulated business.
- In respect of the one count of rape, the respondent was sentenced to six years imprisonment. He was sentenced to lesser concurrent terms of imprisonment for the other offences. It was ordered that he be eligible for parole after serving two years of imprisonment.
- All the offences related to the conduct of the respondent’s massage therapy business. His conduct related to 22 patients to whom he provided health services, namely, massage. Five of the patients were children. Two patients had intellectual impairments. The respondent inappropriately touched or exposed a number of his patients under the guise of legitimate therapeutic treatments, mainly touching them on their breasts or vaginas. The majority of the victims were young women.
- After police seized a laptop belonging to the respondent they discovered that he had been secretly filming therapy sessions in his treatment room, using the laptop’s built-in camera to record both the massage itself and patients undressing and dressing at the beginning and end of each session. Also found on the laptop was a small amount of child exploitation material, as well as adult pornography, including massage-related pornography with women being sexually touched during massages and sexual intercourse on massage tables.
- The details of the respondent’s conduct were recorded in the course of the sentence proceedings in the District Court and in material filed before the Tribunal in these proceedings. I have taken into account the details of the offending. There is no need to repeat the details of the respondent’s conduct in these reasons. Suffice it to say that the respondent was a depraved and determined sexual predator who used his role as a massage therapist to prey upon women and girls for his own sexual gratification.
- The offence of carrying on a regulated business related to the failure of the respondent during the period that he conducted his massage therapy business to hold a positive notice and Blue Card in order to provide health services to children under the age of 18 years.
- In the course of sentencing the respondent on 29 April 2016, the Chief Judge stated:
“The several victim impact statements which have been tendered speak loudly of the devastating effect which your conduct has had on many of those complainants. You took advantage of your position for your own sexual gratification, and in breach of the trust which had been placed in you by those clients. To have secretly filmed those women in those circumstances only makes your offending the more egregious, and the consequences for the complainants the more humiliating.
I have a psychological report, which tells me a great deal about you, and provides some insight, and perhaps an explanation, though never an excuse, for your offending. I accept, beyond your plea of guilty, that these events have had significant personal consequences: the loss of your career and marriage. You are, it seems, remorseful for your conduct, and the psychological report suggests insight into your offending. You are looking to change your ways for the future, and you have, to your credit, sought some professional assistance in that regard.”
- The respondent does not resist the orders sought by the applicant but, nevertheless, the Tribunal must determine, pursuant to s 113(1) of the HO Act, whether the practitioner poses a serious risk to persons, and if so, whether, pursuant to s 113(4) of the HO Act, a prohibition order should be made.
- The term “serious risk” is not defined in the HO Act, the National Law, or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word “serious” is defined in the Macquarie Dictionary as:
“of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.”
- Section 113(2) of the HO Act provides a non-exhaustive list of the types of conduct which may constitute a serious risk, including “engaging in a sexual or improper personal relationship with the person”.
- It is helpful to consider the following criteria:
- (a)the nature of the risk;
- (b)the likelihood of it eventuating; and
- (c)the seriousness of the consequences if the risk eventuates.
- The nature of the risk is that the respondent will, in the course of providing massage or other health services, sexually assault and/or rape patients. The likelihood of the risk eventuating is high because the respondent has shown a determined propensity to offend against patients when they are in a vulnerable and trusting state, with his conduct relating to many different patients and occurring over a substantial period of time. The respondent’s conduct in visually or electronically recording his own behaviour and his possession of child pornography and adult pornography, including pornography relating to massage, show a perverted interest in sexual behaviour of the type he engaged in. The Tribunal could have no confidence that the respondent no longer has such propensities, notwithstanding what one would hope would be the salutary effect of his sentence of imprisonment. The seriousness of the consequences, should the risk eventuate, are, of course, very significant, with commission of serious sexual offences against women and girls likely to cause severe emotional and/or physical harm.
- Bearing in mind the protective purposes of sanction in this jurisdiction and the paramount guiding consideration of the health and safety of the public, the Tribunal is comfortably satisfied to the applicable standard of proof that the respondent poses a serious risk to persons within the terms of s 113(1) of the HO Act.
- The Tribunal therefore has a discretion pursuant to s 113(4) of the HO Act, to make an order:
- (a)prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service; or
- (b)imposing stated restrictions on the provisions of any health service, or a stated health service by the practitioner.
- There are no restrictions that would adequately ameliorate the serious risk posed by the respondent. The material does not permit the Tribunal to find that any prohibition of practice should be for a finite period. In all the circumstances the appropriate order is that there be a permanent prohibition of practice.
- The applicant has indicated that he does not seek any order for costs and that should be reflected in the Tribunal’s orders.
- Accordingly, the Tribunal orders as follows:
- Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.
- Pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order on 20 November 2017.
- Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.
- Each party must bear their own costs of the proceeding.
 Brigginshaw v Brigginshaw (1938) 60 CLR 336.
- Published Case Name:
Health Ombudsman v Samuel Joseph MacBean
- Shortened Case Name:
Health Ombudsman v MacBean
 QCAT 300
13 Sep 2019