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- Unreported Judgment
Health Ombudsman v Arora QCAT 200
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Arora  QCAT 200
Occupational regulation matters
22 May 2019 (ex tempore)
22 May 2019
John Robertson, Judicial Member
The Tribunal finds that in respect of charges 1-5 of the disciplinary referral, the respondent has behaved in a way that constitutes professional misconduct; and orders that:
ADMINISTRATIVE TRIBUNALS – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the disciplinary proceedings against the respondent involve allegations of inappropriate sexual conduct as against three separate female patients – where the allegations were the subject of three separate criminal trials – where the respondent was acquitted on all counts in all three trials – whether the Tribunal finds the allegations made out on the balance of probabilities
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the disciplinary proceedings against the respondent involve allegations of sexual misconduct as against three separate female patients – where the respondent denies the conduct but otherwise declined to submit any evidence or make any submissions in the proceedings – where the respondent is no longer registered
Evidence Act 1977 (Qld), s 93B
Health Ombudsman Act 2012 (Qld), s 4, s 107
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28
Briginshaw v Briginshaw (1938) 60 CLR 336
Legal Services Commissioner v Madden (No 2)  QCA 301
Nursing and Midwifery Board of Australia v Caroll  QCAT 264
Pfennig v The Queen (1995) 182 CLR 461
Pharmacy Board of Australia v Tan  VCAT 1653
APPEARANCES & REPRESENTATION:
J Hunter instructed by the Director of Proceedings, on behalf of the Health Ombudsman
E Bassingthwaighte (sol) Hall Payne Lawyers (the respondent appeared in person)
MR ROBERTSON: On the 28th of February 2018, the Health Ombudsman (the applicant) referred to this Tribunal for hearing five allegations of professional misconduct and/or unprofessional misconduct against Vijay Arora (the respondent) in his capacity, at all material times, as an employed registered nurse at either QEII and/or PA Hospitals. It is common ground that all relevant times, the respondent was registered under the Health Practitioner Regulation National Law (Queensland) (“the National Law”) as a registered nurse with the Nursing and Midwifery Board of Australia (the Board), and was subject to the Standards and Codes relating to appropriate professional practice and ethics as a nurse.
- Particulars of each charge are set out in the application at pages 2 to 5. In essence, it is alleged that on a number of occasions, the respondent engaged in non-consensual sexual contact with hospitalised female patients under his care whilst employed either at the PA or QEII Hospitals. Clearly, if proved to the relevant standard, such conduct by a health service provider is gravely serious, and is conduct that is substantially below the standards reasonably expected of a registered nurse in similar circumstances, and is misconduct inconsistent with the respondent being a fit and proper person to hold registration under the National Law.
- For reasons that will become apparent, it is unnecessary to set out in full the particulars relating to each of the five incidents of alleged boundary violation by the respondent. In summary, it is alleged that on one occasion in the early hours of the morning of the 19th of February 2012, he engaged in non-consensual sexual contact with a female patient in his care (patient 1) at the PA Hospital by rubbing her breasts, touching her vagina and digitally penetrating her while she was in her hospital bed. He then moved her to a weigh chair, and again engaged in entirely inappropriate sexual contact without her consent, including rubbing his erect penis against her arm.
- Charges 2 to 4 relate to patient 2. It is alleged that on three occasions, the respondent engaged in non-consensual sexual misconduct with this female patient while she was in his care. On the 3rd of August 2013, this lady was admitted to QEII Hospital for treatment following a significant epileptic seizure. That evening after patient 2 had used the toilet, the respondent is alleged to have inserted two fingers into her vagina while she was attempting to pull up her pants after going to the toilet. When she returned to her bed, it is alleged that the applicant placed his hand under her nightdress and squeezed her right breast for about 10 and 15 seconds.
- The next incidents involve patient two which it is alleged, occurred the following day, the 4th of August 2013, in the early hours of the morning. Essentially, and against her expressed non-consent, he allegedly engaged in similar conduct to that alleged on the previous day. The next incident occurred between one and two hours later. Again, he accompanied the patient to the toilet and stood in the corner while she used the toilet. While she attempted to pull up her pants, he grabbed the front of her pants and his fingers touched her vagina on the inside of her pants for about five seconds. She then told him to leave, which he did.
- The final incident also occurred on the 4th of August in relation to another patient, patient 3, who was admitted to QEII on the 3rd of August 2013 for treatment for heart failure. In the early hours of the morning of the 4th of August, the respondent was on duty and responsible for her oversight and care. He stood beside her bed and, without her consent, rubbed his hands up and down the right side of her pelvis on the outside of her hospital gown in the vicinity of her vagina.
- On the 7th of June 2018, the then Deputy President of this tribunal, her Honour Judge Sheridan, made non-publication orders, to the effect that publication of any material filed or evidence given or orders made or reasons given by the tribunal, was prohibited to the extent that it could identify any patient of the respondent or any family member of the patients, save as was necessary for the parties to progress the proceedings.
- On the 4th of August 2013, police interviewed the respondent in relation to the immediate allegations made by patient 2. He denied the allegations. However, in relation to all three patients, he has never really disputed that he was working the relevant shifts. I am satisfied that the evidence establishes that he was the only male nurse rostered on at all material times.
- On the 4th of August 2013, police charged the respondent with two counts of rape and three counts of sexual assault relating to patient 2. On the 13th of September 2013, the respondent was charged with two counts and sexual assault of patient 3. On that occasion, he declined to participate in an interview with police in relation to all allegations. It is not clear from the material when the respondent was charged in relation to patient 1; but when the Crown presented an indictment on the 2nd of September 2015 in the District Court of Queensland, he was charged with three counts of sexual assault against her and two counts of rape, and three counts of sexual assault against patient 2, and one count of sexual assault against patient 3.
- Clearly, at the time it presented the joint indictment on the 2nd of September 2015 involving all three patients, the Crown was intending to have a joint trial before one jury of all charges. It is not necessary to explore in detail the relevant legal principles which derive from ss 567, 568 and 597A of the Criminal Code, as interpreted in a long line of authority, many of which cases are gathered together by Keane JA, as his Honour then was, in R v WAH  QCA 263, including Phillips v R (2006) 225 CLR 303.
- To justify the joinder of charges of a sexual nature involving more than one complainant, the prosecution would essentially have to satisfy a judge that the evidence of each complainant is admissible in the trials involving the others. The juris prudence recognises that in relation to charges of this nature, because of the risk of prejudice to a defendant, the Crown has to establish that the evidence of each complainant is cross-admissible in relation to the trial involving the others. The usual basis for doing this is to satisfy the tests set out in cases such as Pfennig v The Queen (1995) 182 CLR 461, namely that the evidence of each is highly probative in relation to the charges involving the other complainants; because of the substantially similar nature of the other evidence, or for other reasons such as to establish a pattern of behaviour or to establish identification or to negate relevant defences.
- The applicant applied for separate trials, and separate trials relating to each complainant or patient were granted in an order made by her Honour Judge Kingham, as her Honour then was, on the 2nd of April 2015.
- On the 2nd and 3rd of September 2015, a trial was conducted in the District Court of Queensland before his Honour Judge Farr SC in relation to charges 1 to 3 on the indictment, the charges relating to patient 1. On the 3rd of September 2015, a jury found the respondent not guilty of all charges. The respondent was discharged on charges 1 to 3 on that indictment.
- On the 6th and 7th of October 2015, a trial was conducted in the District Court of Queensland before his Honour Judge McGill SC in relation to charge 9 on the original indictment, the charge relating to patient 3. Patient 3, by the time of the trial, was deceased. On the 7th of October 2015, a jury found the respondent not guilty of the charge and he was discharged on that indictment.
- On the 15th, 16th and 17th of February 2016, a trial was conducted in the District Court of Queensland, before her Honour Judge Kingham in relation to charges 4 to 8 on the indictment, the charges relating to patient 2. On the 17th of February 2016, a jury found the respondent not guilty of all charges and he was discharged in relation to the counts on that indictment.
- Although the fact of the respondent’s acquittal on all charges is relevant to this Tribunal’s consideration of the evidence in these disciplinary proceedings, it is not, in any way determinative, because proceedings of this nature, unlike criminal proceedings, are protective, not punitive in nature. Consistently with this principle, the Health Ombudsman Act 2012 (“HO Act”), in ss 4(1) and (2), recognises that both in administering the Act and for this Tribunal in proceedings such as these, the health and safety of the public are paramount. Pursuant to ss 28(3)(b) and (c) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), this Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate subject to fairness.
- Further, proceedings of this nature are civil, not criminal in nature, and the standard of proof is accordingly, the civil standard, governed by the principles enunciated by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 -. The attitude and response to the commencement of these proceedings by the respondent is also a relevant factor for this Tribunal to consider. The applicant properly recognises that these allegations of professional misconduct are of the most serious kind properly categorised in the written submissions as an “egregious abuse of trust ... (involving) three separate female patients under his care”.
- It could also be added that the evidence establishes that beyond the breach of the sacrosanct relationship of trust between patient and health practitioner, these patients were extremely vulnerable because of their medical conditions at the time, and the medication that they were taking. It would follow that in applying the Briginshaw standard, the Tribunal should adopt the standard at the higher end of the probability scale because of the serious nature of the allegations and the potential adverse effects on the respondent’s professional career.
- I referred earlier to the respondent’s attitude and response to the allegations set out in the application which was served on them. His response is set out in a letter from his solicitors, Hall Payne Lawyers, which can be found at page 533 of the hearing brief. Relevantly, it is in these terms:
“Our client denies all the particulars of all the charges and denies that he engaged in professional misconduct or unprofessional conduct. Notwithstanding those denials, we are instructed to write to you as follow.
You would be aware that our client no longer holds registration as a nurse and has no intention of applying for registration in the future. Our client instructs that he will not be seeking to place any evidence before the tribunal or make any submissions as to the disposition by the tribunal of the referral.
Our client does not wish to be heard on issues of the admissibility of the evidence relied upon by the applicant, the manner of proof of allegations adopted by the applicant, or upon any other matter, save reserving its position to make submissions on costs if that becomes an issue to be considered by the tribunal.”
- This morning, Ms Bassingthwaighte, a solicitor from Hall Payne Lawyers, appears to represent the respondent, and the respondent himself is presently in court, and she confirmed that his position remained the same as that set out in the letter of the 5th of July 2018.
Discussion of evidence
- The Tribunal has before it the evidence given or presented on oath, at the three separate trials of the three women, along with the evidence of police and other witnesses including complaint witnesses and, in relation to two of the trials, the sworn evidence of the respondent. Complaint evidence in criminal trials is placed before juries as evidence relevant to consistency and reliability of the complainants. The hospital records which are – I should mark as confidential exhibit 1, which I will order be sealed and not to be opened except by order of the Tribunal – contain relevant portions of the progress notes of all patients, which are also replicated in the hearing brief together with the complaint evidence given at the trial. Together, this evidence indicates that all three women, (despite the state of their health and the effect on them of their medications), made early complaints about the respondent’s actions.
- As I noted earlier, he does not dispute that he was on duty, and I’m satisfied that he was the only male nurse on duty at all material times. In relation to the charges, the trial transcripts also contain his evidence on oath in which he denied the allegations of patient 1 in his trial before Judge Farr SC. He elected not to give evidence in his trial involving patient 2. By the time of his trial in relation to the one offence involving sexual assault of patient 3, she had died, so pursuant to s 93B of the Evidence Act 1977 (Qld) her two sworn statements to police were tendered and read to the jury as her evidence.
- The respondent in that trial gave sworn evidence that he was on duty at the QEII Hospital on the 3rd of August 2013, and was rostered and performed the 10.45pm to 7.15am shift and he was able to recall patient 3. He recalled waking her by touching her on the forearm in the morning, but he denied any touching of her hip or near her vagina.
- Unlike the three juries, this Tribunal has before it the evidence of all three patients. Patient 2 also, now, sadly, is deceased, but the Tribunal can rely on her evidence under its general power set out in the QCAT Act and also pursuant to s 93B of the Evidence Act 1977 (Qld). In my opinion, the evidence of all three patients, when viewed together, is powerfully probative of all five charges before the Tribunal as a result of the referral. As noted above, the respondent has chosen not to participate in these proceedings by giving evidence, and the sworn evidence of two of the patients is challenged only to the extent of the respondent’s evidence at the trials involving them. The respondent, with the benefit of legal advice, has chosen not to make any submissions about admissibility. In any event, the Tribunal can, in the compellingly different evidentiary context before it, accept the evidence of all three women to the required standard because taken as a whole, their evidence – particularly as between patients 1 and 2 – is either strikingly similar and/or shows a pattern of behaviour that is inexplicable other than by the respondent’s responsibility for this misconduct.
- The evidence, when considered as a whole, is highly persuasive and the Tribunal accepts it. None of these women knew the others and there is no suggestion in any of the evidence of any collusion. The probability of three quite vulnerable women not known to each other all making false allegations involving considerable detail and context against the respondent is, as a matter of common sense and logic, highly unlikely. All women were of a similar age being 30, 33 and 34 at relevant times. All were extremely vulnerable and were affected by medication. As an aside, the trial judge in each of the separate trials was obliged to direct the jury that before convicting the respondent, they would have to be satisfied beyond a reasonable doubt that the evidence of the particular patient before them of sexual assault and/or rape was both reliable and true and they’d have to be satisfied beyond a reasonable doubt before they could convict. Patient 1 was particularly affected by medication, and it is clear from the cross-examination of the respondent’s barrister at each trial that he regarded the medication issue as relevant to their reliability. The strikingly similar nature of the conduct against patients 1 and 2 is particularly persuasive. Properly, the applicant concedes that the evidence of patient 3 is different, but persuasively points to the evidence of her very assertive reaction to the respondent’s conduct, yelling at him “You’ll never touch me like that ever again”, strongly discouraging him from proceeding further. There is also the feature that each patient described a male nurse as the offender and all assaults occurred while he was on night shift between the hours of approximately 10pm and 7.15am.
- In the view of the Tribunal, the applicant has satisfied it to the required standard of the facts and particulars set out in each of the five charges in the referral. The conduct is of the most serious kind, involving an egregious breach of the patient-health practitioner relationship of trust in which these vulnerable women were preyed upon by the respondent, contrary to his duty of care to them, for his own sexual satisfaction.
- I agree with the applicant that the proved conduct is of the most serious form of boundary violation. The Tribunal therefore finds that in relation to charges 1 to 5 of the disciplinary referral, the respondent has behaved in a way that constitutes professional misconduct.
- As the applicant notes, and as Mr Hunter QC has confirmed this morning on behalf of the applicant, in these circumstances the appropriate sanction is to be significantly guided by the paramount need to protect the public and, more specifically, the patient population, particularly those most vulnerable being cared for by health practitioners in hospitals. The sanction must be such as to ensure the maintenance of accepted standards of professional confidence, and to maintain the public confidence in the medical and nursing professions. Deterrence, both general and personal, are also relevant factors for the Tribunal to consider in fixing an appropriate sanction.
- Personal deterrence is important here because the respondent, in continuing to deny any misconduct, demonstrates a serious lack of insight into the inappropriateness of his conduct. The imposition of a sanction is complicated here as the respondent is no longer registered as a health practitioner. Section 107 of the HO Act sets out the powers of the Tribunal in relation to orders it can make, and ss 107(3) and (4) sets out the powers of the Tribunal in circumstances such as pertain here, where the practitioner is no longer registered.
- The registration history of the respondent is referred to in a number of sections of the evidence. In summary, upon notification to the Australian Health Practitioner Regulation Agency an allegation of sexual misconduct involving patient 2 and subsequent steps, the Board suspended the respondent’s registration on the 15th of August 2013, and commenced an investigation. The office of the Health Ombudsman (OHO) was established on the 1st of July 2014 and the investigation of the allegations was transferred to OHO on the 8th of September 2014. After completion of the criminal trials and as a result of a submission made on the behalf of the respondent to the Board, the suspension of his registration was lifted by it on the 14th of October 2016. On the same day OHO wrote to the respondent, advising him (inter alia) that a schedule of conditions had been imposed on his registration, which are set out at a number of parts of the hearing brief, for example pages 390 to 391. On the 24th of July 2017, the respondent’s lawyers advised OHO that he had allowed his registration to lapse and, in those circumstances, and because the respondent was no longer registered as a nurse and employed outside of the health sector, the conditions as notified on the Health Ombudsman’s website were removed.
- As the applicant notes, there is no directly analogous case in Queensland involving a registered nurse. Pharmacy Board of Australia v Tan  VCAT 1653 involved a provisionally registered pharmacist who committed an act of digital rape on a 22 year old female client of the pharmacy in the context of dispensing medication for a skin rash. Tan was convicted of rape and sentenced to 6 months imprisonment and to a three-year community correction order. In the subsequent disciplinary proceedings he was found guilty of professional misconduct; and he was reprimanded. His provisional registration was cancelled and he was disqualified from re-applying for registration for a period of four years.
- In Nursing and Midwifery Board of Australia v Caroll  QCAT 264, the respondent – a registered nurse – was employed in a medical centre. He administered morphine to a patient against the express direction of her treating doctor. He then raped her by putting his penis in her mouth and ejaculating. He concealed his criminal conduct by drawing a curtain around the bed. The practitioner in the disciplinary proceedings attempted to excuse his conduct by referring to a bipolar disorder. In his interview with police, he made statements to the effect that the patient had consented, or he raised issues such as mistake of fact. The Tribunal took into account, to some extent, the practitioner’s evidence at the time he committed the criminal offences he was suffering from bipolar disorder, had ceased his medication and was in a manic phase. He was precluded from applying for registration for a period of eight years.
- The registration history of the respondent is relevant to the question of sanction. As against that, his conduct was of the most serious kind and he continues to lack insight and deny any wrongdoing. In those circumstances the tribunal orders that:
- (a)in respect of charges 1 to 5 of the disciplinary referral the respondent has behaved in a way that constitutes professional misconduct;
- (b)the respondent is reprimanded; and
- (c)the respondent is disqualified from applying for registration as a health practitioner for a period of six years from today’s date.
The applicant does not seek costs, so there will be no order as to costs.
 Legal Services Commissioner v Madden (No 2)  QCA 301 at .
- Published Case Name:
Health Ombudsman v Arora
- Shortened Case Name:
Health Ombudsman v Arora
 QCAT 200
Judicial Member Robertson
22 May 2019