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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Shetty  QCAT 143
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
Occupational regulation matters
8 June 2020
On the papers
Judicial Member D J McGill SC
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – respondent an unregistered health care professional – respondent a massage therapist – respondent had been convicted of sexual offences against a patient who attended for massage therapy – respondent did not take part in the proceeding – whether 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.
Health Ombudsman v Costello  QCAT 117
Health Ombudsman v Kirk  QCAT 301
Health Ombudsman v Newman  QCAT 397
Health Ombudsman v MacBean  QCAT 300
The Office of the Health Ombudsman
The respondent was not represented
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 reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. At the time relevant to this proceeding, July 2015, the respondent was providing massage therapy services. He was therefore providing a health service, that is, a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing: s 7(1). So he was a health service provider, and a health practitioner: s 8. There was however no requirement under the Health Practitioner Regulation National Law (Qld) for him to register under that Law, since massage therapy is not a health profession for the purposes of that Law: s 5.
- On 31 March 2017 the respondent was convicted after a trial in the District Court of two counts of sexual assault, both committed on the same person on 20 July 2015. At the time the assaults were committed, the respondent was providing massage therapy to the complainant, in the form of a full body massage. The respondent was sentenced to a term of imprisonment, suspended at the half way mark. Upon his release from prison, he was deported from Australia. So far as is known, he remains out of the country, but his whereabouts are unknown.
- On 19 August 2015 the applicant issued an interim prohibition order to the respondent under the Act s 86. This prevented him from providing a health service that involves physical contact with a patient. The matter was referred to the Tribunal on 27 June 2018, and a non-publication order in relation to the identity of any patient of the respondent, or family member of a patient, was made on 11 September 2019. Service of the proceeding on the respondent was effected by email, in accordance with an order of the Tribunal of 11 September 2019. He has not responded to the proceedings.
- The Act provides in s 113 that if the Tribunal decides that the health practitioner poses a serious risk to persons, it may make a prohibition order prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service. In the alternative, it may impose restrictions on the provision of any health service, or a particular health service, by the practitioner. Subsection (2) provides examples of conduct which may be regarded as posing a serious risk to persons. One of these is “engaging in a sexual or improper relationship with a person”: s 113(2)(c).
- There have been decisions of the Tribunal considering and applying these provisions. In Health Ombudsman v Costello  QCAT 117 the respondent, an aboriginal health worker, sexually assaulted a patient in connection with a health check. He had been dealt with by a court, and imprisoned. The Hon J B Thomas QC, who constituted the Tribunal, said the factors which indicated a serious risk were the nature of the sexual acts, and the existence of mental health issues on the part of the respondent. He said:
“ 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 … .”
- He added at  that a breach of this kind was unacceptable at any level of health service provider, and at  that deterrence was particularly important in the case of a health service provider who did not need to be registered. In that case, a permanent prohibition order was made, in circumstances where there was no evidence to base a conclusion that the respondent would be safe to provide health services at any time in the future: . He made a permanent prohibition order, noting that it appeared that a power existed in QCAT to revoke or amend the decision in the future under the Acts Interpretation Act 1954 s 24AA.
- In Health Ombudsman v MacBean  QCAT 300 the respondent was a massage therapist who had been convicted and sentenced for a large number of sexual offences committed in the course of his massage therapy practice. This involved 22 patients, five of whom were children. He pleaded guilty to 50 counts, including one of rape and eight of indecent treatment of a child under 16. The Deputy President of the Tribunal, Allen DCJ, said that, in assessing whether a respondent posed a serious risk to persons, it was helpful to consider the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk did eventuate: . In that case, the risk of further similar behaviour was found to be high, because of the respondent’s persistence in offending against vulnerable patients, and the consequences if the risk eventuated were also very significance, because of the significant adverse psychological effects which sexual assault can cause: . A prohibition order was made.
- In Health Ombudsman v Kirk  QCAT 301 the respondent, who had been practicing as a massage therapist and hypnotherapist, was convicted of a number of sexual offences committed over a period of six years against four patients, and sentence to terms of imprisonment; one of the offences was digital rape. By the time he was before the Tribunal he was suffering a degenerative neurological disease, and was said to be physically incapable of working as a health practitioner. He did not oppose a prohibition order, and such an order was made. The analysis was similar to that in MacBean.
- In Health Ombudsman v Newman  QCAT 397 the respondent was a former massage therapist who was convicted of sexual offences against three female patients, each committed on the pretext of providing legitimate massage therapy. The offending occurred about ten years earlier than the proceedings before the Tribunal, by which time the respondent was 68; he did not take any part in the proceeding. The Deputy President of the Tribunal, Allen DCJ, identified the risk as that of further sexual assault of patients. He assessed the risk as high, because of the number of offences and the absence of evidence that the respondent had been rehabilitated. The consequences of the risk eventuating were regarded as very serious. `
- I have also been referred to three decisions of the Health Care Complaints Commission under the Health Care Complaints Act 1993 (NSW), in each of which a massage therapist had been convicted of one or more sexual offences committed against a patient being treated. In two of these, a permanent prohibition order was made, and in the third, a prohibition order was made for a period of five years.
- There are similarities here. The risk is that the respondent would again sexually assault a person being treated, and the consequences of the risk eventuating are very serious, as in the other cases. There is however less material in this case about the prospect of the risk eventuating. There was only one complainant in the criminal proceeding, and there are no other known victims. It is quite possible that, after serving a period of actual imprisonment, the respondent would never offend in that way again. On the other hand, he might. There is no material suggesting a particular basis for expecting a further offence, other than the bare fact of one incident, but on the other hand, as in Newman, there is no material to show that the respondent has taken steps to rehabilitate himself, or other positive material suggesting the respondent is unlikely to reoffend. I do not even know whether the respondent completed any courses for sexual offenders while in prison, although I suspect that the period of actual imprisonment of five months was too short for him even to start any such course.
- In my opinion the issue must be approached on the basis that the purpose of the statutory power exercised by the Tribunal is the protection of the public, and in the exercise of the power, the health and safety of the public are paramount. When the matter is approached in that way, the absence of any positive evidence of rehabilitation, or otherwise showing that the risk of reoffending is relatively low, means that it is appropriate for the Tribunal to conclude that there is a real risk of reoffending. In those circumstances, because of the serious nature of the conduct and the serious consequences of further such conduct, it is appropriate to find that the respondent poses a serious risk to persons.
- The next issue is whether a prohibition or restriction order should be made. As indicated in Costello, there are two aspects to this: whether a prohibition or restriction order should be made at all, and whether it should be made permanent or for some fixed period. Given the nature of the conduct, it would be appropriate for there to be a prohibition, as it suggests that the respondent could not safely be left alone with a young female patient, and that could occur in a wide range of health services. There is also the consideration that there is no material before the Tribunal which would provide logical support for a prohibition for any particular period. In such a situation, the Tribunal has in the past commonly made a permanent prohibition order. In all the circumstances, it is appropriate to make a permanent prohibition order.
- 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 dated 19 August 2015.
- Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.
- Both parties must bear their own costs of the proceeding.
 The practical effect of that is that I can deal with this matter without the assistance of assessors: s 126.
 Decisions of Casidy and Shen, both dated 30 July 2019.
 Decision of Lever, dated 29 July 2015.
 I was told while a judge that there was usually some delay before a prisoner could take such a course.
- Published Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Harish Shetty
- Shortened Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Harish Shetty
 QCAT 143
Judicial Member D J McGill SC
08 Jun 2020