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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Kirk  QCAT 301
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 provided a number of services out of his own home-based business including massage, acupuncture, counselling, psychotherapy, hypnotherapy, cognitive behavioural therapy and pain management – 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 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 103, s 113
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 Paul Kirk (“respondent”), pursuant to ss 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 (“applicant”). The applicant refers the matter for a prohibition order pursuant to section 113(1) and (4) of the HO Act.
- The respondent is 55 years old, born on 30 August 1964, and was formerly a non-registered therapist practising in hypno-psychotherapy and massage. At the time of the relevant conduct, the respondent was self-employed. The respondent received various diplomas in hypnotherapy and psychotherapy in 2007 to 2009, and studied massage therapy in 2012.
- Throughout the course of the conduct, the respondent was operating a practice titled “Western Healing” at his homes in Warwick between 2005 and 2013 and, subsequently, Torquay until 2016. He advertised and provided a number of services including massage, acupuncture, counselling, psychotherapy, hypnotherapy, cognitive behavioural therapy and pain management. At all material times, the respondent was a health service provider not required to be registered under the Health Practitioner Regulation National Law (Qld) (“National Law”), and a health service provider within the meaning of s 8(a)(ii) of the HO Act.
- Pursuant to s 113(1) of the HO Act, the Tribunal must decide if, because of the health practitioner’s health, conduct or performance, the practitioner poses a serious risk of persons. Section 113(2) provides that:
“Without limiting subsection (1), the serious risk posed to a person by a health practitioner may be a serious risk of harm caused by the practitioner -”
amongst other things:
“(c) engaging in a sexual or improper personal relationship with the person.”
- Pursuant to s 113(4):
“If QCAT decides the practitioner poses a serious risk to persons, it may make an order (a prohibition 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 provision of any health service, or a stated health service, by the practitioner.”
- The applicant alleges that the respondent poses a serious risk to persons because of the following conduct, all of which is admitted by the respondent.
- In 2010, a 17 year old girl sought treatment from the respondent for a painful sciatic nerve in her left leg and general back problems. On two occasions during the course of providing massage services to the patient, the respondent sexually assaulted the patient. The respondent was found guilty of two counts of sexual assault after a trial in the District Court and, on 26 March 2012, was sentenced to 12 months imprisonment, suspended after a period of three months.
- On 15 February 2011, the respondent assaulted a 31 year old female patient during the course of a massage. On 26 February 2013, the respondent was sentenced in the District Court to a period of imprisonment of six months, wholly suspended for an operational period of 12 months. In sentencing the respondent, the learned sentencing judge accepted the respondent’s submissions that he was suffering from depression and muscular dystrophy and was, at that time, having difficulty rising from a sitting position and was prone to falls.
- The third victim of the respondent’s conduct was a 33 year old woman who was sexually assaulted by the respondent on 30 March 2011. Following his conviction in relation to the first patient, on 26 March 2012 the respondent pleaded guilty to one count of sexual assault with respect to this third patient. On 26 March 2012, he was sentenced to a period of imprisonment of 12 months, suspended after a period of three months, concurrent with the sentence imposed at the same time regarding the first patient (see paragraph ). The learned sentencing judge acknowledged that the respondent suffered from muscular dystrophy and that a sentence of imprisonment would bear more heavily on him than other members of the prison population.
- The fourth victim of the respondent was a 30 year old female patient who attended upon him for hypnotherapy in an effort to quit smoking cigarettes. During a hypnotherapy session, the respondent sexually assaulted the patient and raped her by inserting a finger inside her vagina. On 26 April 2017, the respondent pleaded guilty to one count of rape and one count of sexual assault. The learned sentencing judge noted the respondent was suffering facioscapulohumeral muscular dystrophy which was progressive and incapable of treatment and would be extremely debilitating and likely to progress significantly. The respondent was also suffering from major depression. The respondent was sentenced to two and a half years imprisonment for the offence of rape with a lesser concurrent sentence for the offence of sexual assault with a parole eligibility date after six months of the sentence.
- On 8 September 2016, the applicant was notified by the Queensland Police Service that the respondent had been charged with one count of rape and one count of sexual assault in relation to the fourth patient. The applicant issued the respondent with an interim prohibition order pursuant to s 68 of the HO Act on 14 December 2016, prohibiting the respondent from engaging in any employment (paid or otherwise) in a clinical or non-clinical capacity relating to the provision of any health service.
- The respondent suffered from facioscapulohumeral muscular dystrophy at the time of each of the criminal offences. Despite such condition, the respondent could communicate normally and maintained mostly normal use of his hands. On 6 April 2018, the respondent’s general practitioner certified that the respondent was both physically incapable and emotionally disinclined to ever be able to re-enter the workforce in the health industry. He stated that he was wheelchair-bound with all the features of a progressive, degenerative facioscapulohumeral muscular dystrophy.
- The respondent does not resist a finding pursuant to s 113(1) of the HO Act that he poses a serious risk to persons and does not resist the making of an order pursuant to s 113(4)(a) of the HO Act. Nevertheless, the Tribunal must decide, pursuant to s 113(1) of the HO Act, if the respondent poses a serious risk to persons and, pursuant to s 113(4) of the HO Act, whether it should make a prohibition order. In doing so, the general principles with respect to this disciplinary jurisdiction are applicable. Disciplinary orders are protective, not punitive, in nature. The protection of the health and safety of the public must be the main consideration for the Tribunal.
- 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 health conduct or performance which may constitute a “serious risk” to persons and they include “engaging in a sexual or improper personal relationship with the person.”
- The applicant submits, and the Tribunal accepts, that in determining if the respondent poses a serious risk, it is helpful to consider:
- (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 propensity to offend against patients when they are in a vulnerable and trusting state. The conduct involved four different patients, occurred over a lengthy period of time, and escalated to rape by digital penetration, notwithstanding the respondent having been previously imprisoned for offences of sexual assault. The persistent behaviour suggests a strong propensity towards such deviant behaviour. The respondent behaved as a depraved and determined sexual predator who used his role as a therapist to prey upon women for his own sexual gratification. Whilst the respondent continues to suffer from facioscapulohumeral muscular dystrophy, which must place increasing restrictions upon his physical capacity to engage in such conduct in the future, he was able to commit the offences whilst suffering from that condition as recently as 2016. The evidence is not such that the Tribunal could be satisfied that the respondent’s health is such that he no longer presents a serious risk to persons. The seriousness of the consequences, should the risk eventuate, are, of course, very significant, with the likelihood that serious sexual offences against women would cause severe emotional and/or physical harm.
- In all the circumstances, the Tribunal decides, pursuant to s 113(1) of the HO Act, that, because of the respondent’s conduct, the respondent poses a serious risk to persons.
- The Tribunal thus 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 provision of any health service or a stated health service by the practitioner.
- The serious risk posed by the respondent could not be adequately mitigated by imposing restrictions on the provision of any health service by the respondent. The Tribunal cannot find that the risk would be ameliorated by the passage of time, such that any prohibition order be for a stated period. In all the circumstances, the appropriate order is for a permanent prohibition order.
- The applicant does not seek any order for costs and that should be reflected in the orders of the Tribunal.
- Accordingly, it is ordered:
- Pursuant to s 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 s 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order on 14 September 2016.
- Pursuant to s 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.
- Published Case Name:
Health Ombudsman v Paul Kirk
- Shortened Case Name:
Health Ombudsman v Kirk
 QCAT 301
13 Sep 2019