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- Unreported Judgment
Health Ombudsman v Mak QCAT 24
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Mak  QCAT 24
TSZ HONG MAK
Occupational regulation matters
20 February 2019
On the papers
Judge Allen QC, Deputy President
Dr A Tuckett
Ms I Patane
Mr K MacDougall
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the practitioner was a registered nurse – where the practitioner was charged and convicted on his own plea of guilty of the possession of child exploitation material – where there was evidence that the respondent may have been suffering from an undiagnosed mental health condition at the time of the conduct - where the practitioner surrendered his registration – where the practitioner provided a sworn statement indicating that he had no intention of returning to the profession – where the parties have an agreed position on sanction – whether the sanction proposed is appropriate
Health Ombudsman Act 2013 (Qld), sch 1, s 4, s 36, s 103, s 107
Health Practitioner Regulation National Law (Queensland), s 5, s 146
R v Oliver  EWCA Crim 2766, cited
Nursing and Midwifery Board of Australia v Brearley  QCAT 323, considered
Medical Radiation Technologists Board of Queensland v Groves  QCAT 528, considered
Pharmacist Board of Queensland v Gordon  QCAT 181, considered
Psychology Board of Australia v Cameron  QCAT 227, cited
Medical Board of Australia v Martin  QCAT 376, cited
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
- The respondent was a registered health practitioner, holding general registration as a nurse between 7 December 2004 and 14 October 2016. The respondent is no longer a registered health practitioner after surrendering his registration on 1 August 2016, which was accepted by the Nursing and Midwifery Board of Australia on 14 October 2016. This matter concerns criminal conduct by the respondent unrelated to the practice of his nursing profession, namely, the possession of child exploitation material by the respondent on 26 June 2011, constituting an indictable offence for which the respondent was sentenced in the District Court at Brisbane on 13 October 2015.
- After notifications to the Australian Health Practitioner Regulation Agency (‘AHPRA’) and the Office of the Health Ombudsman by, respectively, the Nursing Director and the Workforce Manager of the Queen Elizabeth II Jubilee Hospital (‘the QEII Hospital’), the Health Ombudsman investigated the notifications as health service complaints under the Health Ombudsman Act 2013 (Qld) (‘the Act’). The disciplinary referral was filed on 22 June 2018 pursuant to s 103(1)(a) of the Act and the respondent filed a response on 26 September 2018.
- There is no dispute between the parties as to the relevant facts, including the conduct alleged to constitute professional misconduct, its characterisation as professional misconduct and an appropriate sanction. By his response, the respondent admitted the alleged particulars of his conduct and that he had engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (Queensland) (‘the National Law’), in that he engaged in unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, and/or engaged in conduct that is inconsistent with the respondent being a fit and proper person to hold registration. The parties have reached agreement as to the terms of a Statement of Agreed Facts and filed joint submissions in which they both contend for a finding that the respondent has behaved in a way that constitutes professional misconduct and both submit that the following orders are appropriate in the circumstances of the case:
- (a)the respondent is reprimanded pursuant to s 107(3)(a) of the Act;
- (b)the respondent is disqualified from applying for registration for a period of three years pursuant to s 107(4)(a) of the Act; and
- (c)each party bear their own costs.
- The respondent is 44 years old and was aged 37 at the time of the conduct.
- The respondent was first registered as a nurse on 7 December 2004.
- The respondent commenced employment as a registered nurse at the QEII Hospital on 18 August 2008 and was employed there at the time of the conduct.
- On 26 June 2011, the practitioner took his computer to a computer repair shop for repair. On 4 July 2011, the staff at the computer repair shop found child exploitation material (‘CEM’) in a folder on the respondent’s computer and notified the Queensland Police Service. On 4 July 2011, police seized the respondent’s computer and on 11 July 2011 executed a search warrant at the respondent’s residence. The respondent was found to be in possession of 4,763 images categorised as CEM including 203 images categorised as category 4 on the “Oliver scale” depicting penetrative sexual activity between children and adults and 239 movie files characterised as CEM including 150 movies characterised as category 4 on the Oliver scale. The respondent was arrested and charged with one count of possessing CEM pursuant to s 228D of the Criminal Code (Qld).
- On 11 July 2011, the respondent was interviewed by police and made admissions to knowing that there was CEM on his computer. The terms of his admissions were at times somewhat guarded and inconsistent. He seemed to suggest that the CEM might have been there before he purchased the computer hard-drive second hand from someone he did not name. He spoke about possibly inadvertently downloading some CEM. He said that he had looked at CEM out of curiosity but it was not clear whether he was admitting to actively downloading the CEM for that purpose. He said that he started downloading CEM a couple of years previously because he was provoked into doing so by a tenant who called him ‘boring’ and ‘a square’. That person had sold him two of the computer hard-drives. The respondent admitted that the user directory in which the CEM was found was his. He said that he was intending to get rid of the CEM by deleting it but always came home late from work and never got around to doing it. He expressed deep remorse and said that he had no desire to, nor had he or would he ever, have sex with a child.
- Some subsequent statements by the respondent were inconsistent with a candid acknowledgment of guilt. On 18 July 2011, in a telephone call with an AHPRA officer, the respondent made comments including ‘I have not done anything bad, I’m not a bad person’ and ‘trying to prove I am innocent’. On 1 September 2011, the respondent sent an email to his employer in which he advised that he was ‘vigorously defending my innocence’.
- The respondent had no reported psychiatric history prior to being charged with the subject offence on 11 July 2011. All of his symptoms were reported to psychiatrists after that time.
- In 2011 the respondent was diagnosed with an adjustment disorder.
- In August 2011, a psychologist noted that the respondent ‘showed some signs of confusion although he was not psychotic’. On 10 August 2011, after referral by the psychologist to the Princess Alexandra Hospital Mental Health Service (‘PAHMHS’) the respondent:
- (a)reported ‘a voice behind my head’ telling him to do things, e.g. ‘admit it’, ‘tell them’ and ‘why do you live’;
- (b)advised he was likely to be charged with child pornography offences after a flatmate left the country leaving a computer with him which was later found to have offensive material on it; and
- (c)denied the conduct alleged in the criminal charge.
- On 18 June 2012, the respondent presented to the PAHMHS upon a referral by his general practitioner for review and management of depression and anxiety. The respondent reported hearing voices in his head.
- On 16 March 2013, the respondent was reviewed at the Princess Alexandra Hospital. The 2011 diagnosis of an adjustment disorder was confirmed. He was not considered to be showing symptoms of psychotic illness.
- On 16 May 2013, the respondent was reviewed by Dr Schramm, psychiatrist, at the request of the respondent’s solicitor for the purpose of providing an expert opinion as to the respondent’s fitness for trial. Dr Schramm diagnosed the respondent as having long ‘suffered a serious mental disease featuring symptoms of psychosis and mood which, until the last couple of months prior to him seeing Dr Schramm, had gone essentially untreated.’ The respondent was referred to the PAHMHS and managed under an involuntary treatment order until his appearance in the Mental Health Court.
- On 1 October 2014, the Mental Health Court decided that the respondent:
- (a)was not of unsound mind when the alleged offence was committed;
- (b)was not fit for trial; and
- (c)the unfitness for trial was not of a permanent nature.
- On 1 October 2014, the Mental Health Court made a forensic order for the involuntary treatment or care of the respondent at the Princess Alexandra Hospital. The forensic order was revoked in December 2014 when the Mental Health Court found the respondent was fit for trial.
- In the course of the prosecution of the charge of possession of CEM in the District Court at Brisbane, the respondent sought the exclusion of his police interview on the ground that at the time of the interview he was suffering from an undiagnosed and untreated mental illness and it would be unfair to allow the interview into evidence at trial. The pre-trial application was heard by the District Court on 22 July 2015. In dismissing the application to exclude the interview, the presiding Judge:
- (a)noted significant discrepancies between the respondent’s evidence in the hearing and what he had told Dr Schramm concerning his alleged auditory hallucinations during the course of the interview;
- (b)found the respondent to be a most unimpressive witness lacking in credibility;
- (c)noted that during the interview the respondent gave timely, appropriate, responsive and coherent answers to questions, both incriminatory and at other times exculpatory and was able to offer coherent and additional information spontaneously; and
- (d)concluded that he was not satisfied that the mental state of the applicant was, at the time of the interview, such as to prevent him from giving a true account of events, nor that his mind was so unbalanced it would be unsafe to rely upon the things he said.
- On 8 September 2015, a psychiatrist noted that the respondent continued to deny that he had downloaded any CEM, stating it had been a tenant who had access to his computer and had since gone overseas. The respondent reported that at the time he only looked at child pornography ‘academic articles’ in order to find out more as instructed by the ‘voice of God’ and denied looking at images.
- On 22 September 2015, the respondent’s care was transferred from the PAHMHS to his general practitioner. It was noted in the discharge summary that his symptoms had resolved although he did report low grade auditory hallucinations in the context of stress.
- On 13 October 2015, the respondent pleaded guilty to, and was convicted of, one count of possessing CEM and was sentenced to 12 months’ imprisonment wholly suspended for a period of three years. The sentencing Judge noted the contents of psychiatric reports and stated:
All reports confirm your diagnosis of chronic paranoid schizophrenia. It is accepted that at the time of this offending that condition was both undiagnosed and untreated. There is no doubt that whilst that condition was not treated, you suffered from depression and anxiety and complex persecutory delusion system with auditory hallucinations. It is believed you were suffering from your condition for 10 years prior to its diagnosis.
In considering the ultimate penalty to be imposed, it was accepted that the mental health condition you were suffering was a relevant factor and certainly removed the aspect of general deterrence in this case.
- In a letter dated 13 December 2018, the respondent’s general practitioner reported a diagnosis of schizophrenia and depression (primary diagnosis) and adult ADHD (secondary diagnosis) with the prescription of Invega MR 9 mg, Zyprexa 2.5 mg and Oxazepam 30 mg for schizophrenia and depression.
- By affidavit, the respondent confirms such prescription of medication and deposes to being compliant with his medication regime as he recognises the benefits for his mental health in doing so.
- The parties agree that the respondent suffers from and is being treated for:
- (b)depression; and
- (c)adult ADHD.
- The respondent was suspended from his employment on 12 July 2011 and has not practised as a nurse since that time.
- The respondent deposes to studying with a view to obtaining qualifications and employment in a non-health related field. The respondent deposes that he has no intention of returning to nursing or any other health care practice. The respondent deposes that he is remorseful for having engaged in the conduct constituting his criminal offending. The respondent deposes that he understands that the conduct is incompatible with holding registration as a nurse and that he is significantly embarrassed and ashamed to have let down his former profession.
Characterisation of conduct
- The parties agree and jointly submit and the Tribunal readily accepts and finds that the respondent’s conduct amounts to professional misconduct as defined in limb (c) of the definition of ‘professional misconduct’ in s 5 of the Schedule to the National Law, that is, conduct of the respondent, whether occurring in connection with the practice of the respondent’s profession or not, that is inconsistent with the respondent being a fit and proper person to hold registration in the profession.
- When determining sanction, the protection of the health and safety of the public is paramount.
- The options available to the Tribunal under the Act are limited given the respondent is no longer a registered health practitioner.
- The parties have referred to and compared and contrasted the circumstances of comparative cases of Nursing and Midwifery Board of Australia v Brearley,Medical Radiation Technologists Board of Queensland v Groves and Pharmacist Board of Queensland v Gordon in support of the joint submissions as to appropriate orders of sanction.
- The Tribunal accepts the joint submissions of the parties that:
- (a)in the exercise of protective jurisdiction it is appropriate for the Tribunal to take into account the maintenance of professional standards, the preservation of public confidence in the nursing profession and the need to deter the respondent and also other health practitioners from engaging in like conduct;
- (b)aspects of personal and general deterrence, whilst lessened by the respondent’s mental illness at the time of the conduct, remain relevant in the exercise of the protective jurisdiction and consideration of appropriate orders for sanction; and
- (c)the Tribunal should send a clear message to practitioners that conduct of this kind will be taken very seriously by the Tribunal and that disapproval of the respondent’s conduct should be expressed by a significant period of disqualification from applying for re-registration for the purposes of deterrence, and to indicate to the profession and the public that such conduct is a gross departure from the standard expected of nurses.
- In determining sanction, the Tribunal has taken into account mitigating considerations including:
- (a)the respondent has demonstrated some insight into and remorse for his conduct;
- (b)the contribution of the respondent’s mental illness to his conduct; and
- (c)the respondent’s conduct of proceedings before this Tribunal.
- The parties do not seek a finding of impairment by the Tribunal in this matter as the respondent is no longer registered. Indeed, the parties argue that it is not open to the Tribunal to make a finding of impairment in relation to a formerly registered practitioner. It is not necessary for the Tribunal to determine such issue of statutory interpretation as the Tribunal accepts that it is neither necessary nor appropriate to make any finding of impairment in the circumstances of this case.
- The Tribunal notes that the parties are not seeking any prohibition pursuant to s 107(4)(b) of the Act in addition to any disqualification period in light of the respondent’s expressed intention not to attempt to return to nursing or any other field of health care.
- The parties submit, and the Tribunal accepts, that the comparative cases of Brearley, Groves and Gordon provide some guidance in determining an appropriate sanction for the respondent’s conduct. In accordance with those cases, the parties submit that a reprimand in conjunction with a period of disqualification is appropriate. The parties submit that a period of disqualification of three years would be an appropriate sanction in the present case. Taking into account that the respondent, as a consequence of his conduct, has been unable to practice as a nurse since July 2011, the Tribunal accepts that such period of disqualification is an appropriate one.
- A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. It is appropriate that there be a public denunciation of the respondent’s conduct by way of a reprimand.
- The parties submit and the Tribunal accepts that the sanction proposed by the parties falls within a permissible range of sanction for the conduct having regard to comparable cases in the jurisdiction. The Tribunal ought not depart from a proposed sanction agreement between the parties unless it falls outside a permissible range. The Tribunal finds that the proposed sanction is an appropriate one in all the circumstances.
- Accordingly, the Tribunal orders that:
- (a)pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that respondent has behaved in a way that constitutes professional misconduct;
- (b)pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
- (c)pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of three years; and
- (d)each party bear their own costs of the proceedings.
 As defined by Schedule 1 of the Health Ombudsman Act 2013 (Qld) and s 5 of the Health Practitioner Regulation National Law (Queensland).
 Section 146 of the National Law and s 36 of the Act.
 See R v Oliver  EWCA Crim 2766, discussed in Queensland Sentencing Advisory Council, Classification of child exploitation material for sentencing purposes, Final report (July 2017), 5, https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0017/531503/cem-final-report-july-2017.pdf.
 Section 4 of the Act.
  QCAT 323 (‘Brearley’).
  QCAT 528 (‘Groves’).
  QCAT 181 (‘Gordon’).
 Psychology Board of Australia v Cameron  QCAT 227, .
 Medical Board of Australia v Martin  QCAT 376, -.
- Published Case Name:
Health Ombudsman v Mak
- Shortened Case Name:
Health Ombudsman v Mak
 QCAT 24
Deputy President Judge Allen QC, Dr A Tuckett, Ms I Patane, Mr K MacDougall
20 Feb 2019