LCK v Health Ombudsman[2020] QCAT 316

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application to review immediate registration action taken by the respondent on 9 August 2019, when the respondent placed conditions on the registration of the applicant which, in essence, prevented the applicant from treating any female patients. At the conclusion of the hearing on 3 August 2020 the Tribunal decided to order that the conditions imposed on the registration of the applicant by the respondent be removed, and that there be no conditions imposed on his registration. I said then that the reasons for the decision would be given in due course. These are those reasons.

Background facts^[1]

2. [2]
   The applicant is a registered medical practitioner. He was born in 1974 in South Africa, and grew up there in the apartheid era,^[2] despite which he was able to obtain a medical qualification in 1998. Two years later he and his wife migrated to Australia, where after further study and examinations he was registered as a medical practitioner in 2002. In 2008 he became a fellow of the Royal Australasian College of Physicians and obtained a sub-speciality qualification in paediatric emergency medicine, and in 2008 became a fellow of the Australasian College of Emergency Medicine. He was employed by Queensland Health from 2000, and from January 2013 he was the Clinical Director of the Paediatric Emergency Department at his hospital.
3. [3]
   In February 2018 he was the subject of an investigation into his interpersonal manner and clinical judgment following complaints concerning a paediatric patient. It is unnecessary to refer to the detail of this, because its significance lies in the substantial stress to which he was subjected by this process, and indeed by its aftermath. The investigation appears to have been conducted in a very heavy-handed and unreasonable manner, and he was left feeling unsupported by management, which maximised his stress.^[3]
4. [4]
   For example, he was told to extend some leave he had already arranged, but this was then deducted from his annual leave. At one point he was told that he was not to work in the Paediatric Emergency Department, although he was still rostered to work there; he had to arrange shift swaps himself to work elsewhere, but he was not allowed to tell anyone why he was doing this. There was a delay of over a month between when he was told there were complaints, and when he was given the details of the complaints. Later it was alleged that he had disobeyed the instruction not to tell anyone about what was going on, and stood down, but then it was about two months before he was given details of this allegation. His (understandable) perception was that the investigation was unfair.
5. [5]
   On 26 July 2018 he was advised of the decision from the investigation, that his conduct when interacting with colleagues on the original occasion was inappropriate, and that his discussion of the matter with other staff in breach of the direction was inappropriate. He was warned to maintain the code of conduct and directed to actively engage in some workplace culture initiative the service was running, and model a high standard of professional conduct at all times in the workplace.^[4] There was to be one-on-one Executive Coaching with him,^[5] and he was to transition back to his role in the Paediatric Emergency Department. He said that although still director he was not allowed to hold meetings with staff without a more senior person present, and was not allowed to be involved in engaging new staff. His perception was that the nursing staff who had complained were still hostile to him, and he received no support from management. He reacted by obsessing over his work, double checking everything and writing more detailed notes about everything he did.
6. [6]
   In late March 2018 he consulted a general practitioner about the effects on him of workplace stress. The GP prescribed medication, and suggested a referral to a psychiatrist, although he did not think the applicant was depressed. That was not followed up at that stage. On about 3 October he took an overdose of Panadol, which merely made him ill. This was the beginning of suicidal feelings. It is clear that, although the applicant did not appreciate it at the time, his mental health was seriously deteriorating.

The offending

7. [7]
   On 10 October 2018 the applicant went with his wife to a shopping centre, where they went separate ways. He purchased a gift, and then as he wandered around in what he described as a dream-like state, he noticed an attractive young woman and decided to record her on video, using his phone. This was positioned so as to look up her skirt, and film her underwear. He repeated this, taking a video of a total of seven young women,^[6] in such a way that none of them was aware that this was occurring. He was however noticed by a bystander, and as a result the police were alerted and they arrested the applicant. At the time his wife and the police reported that he was looking dazed, confused and sweaty, and was speaking gibberish.^[7]
8. [8]
   Police examined his phone but located no similar material created on any other occasion. They also searched his home computer while he was detained at the police station, and found no incriminating material. He spent the night in the watchhouse, and was released on bail the next day. On that day the hospital authorities advised that they were considering suspending him without pay because of the criminal charges, and advised the respondent of the criminal charges. The applicant saw his GP, and the following day saw a psychiatrist, who admitted him to a psychiatric hospital, where he remained until 23 November 2018.
9. [9]
   While there he was suspended without pay by the hospital authority. On 30 October 2018 the respondent gave notice to the applicant of proposed immediate registration action, but the action foreshadowed was not taken. On 3 December 2018, the respondent gave him another such notice, proposing chaperone conditions, which were imposed on 7 February 2019. On 28 February 2019 the applicant pleaded guilty in the Magistrates Court to seven charges of filming in breach of privacy (one for each victim) and was placed on probation for fifteen months, with no conviction recorded. There was a special condition of his probation, that he submit to such medical, psychiatric or psychological assessment and treatment as was directed by an authorised corrective services officer. In fact he was already seeing a psychiatrist and a psychologist regularly, and the officer spoke to them, but no direction was ever given.
10. [10]
    On 5 March 2019 the hospital commenced disciplinary action against the applicant, which ultimately resulted in his dismissal on 9 September 2019. On 18 June 2019 the respondent issued a notice to the applicant foreshadowing further immediate registration action, in the form of gender restrictions. After receiving on 17 July 2019 submissions on behalf of the applicant, on 9 August 2019 the respondent took the immediate registration action the subject of this application. The disciplinary proceeding was eventually referred to the Tribunal on 29 May 2020.
11. [11]
    The practical effect of the imposition of these conditions has been that the applicant has been unable to work as an emergency physician, and practically unable to work as a doctor at all. In order to earn some income, he has expanded a previous voluntary role of providing tuition for emergency medicine trainees so as to offer it more widely and to charge for it, with the practical advantage that this has kept him in touch with the requirements of such a role. This is no doubt helpful for the trainees he is assisting, but in many ways it is a waste of his ability, learning and experience.

Medical evidence

12. [12]
    There were a number of reports dealing with the applicant’s mental health before the Tribunal. Dr D Varghese, the treating psychiatrist, reported on 6 December 2018^[8] that he had seen the applicant on 12 October 2018, and that the applicant had been hospitalised because of the risk of suicide. While there his medication was adjusted, and he commenced treatment from a psychologist. There were periods of agitation initially, and his condition improved while there. Dr Varghese diagnosed a major depressive episode with anxiety and agitated features. He described the applicant’s pre-morbid condition as a highly driven, somewhat perfectionist individual with a tendency to obsessional and schizoid defences.
13. [13]
    In a further, brief report on 26 February 2019^[9] Dr Varghese expressed the opinion that at the time of the offending the applicant’s capacity was impaired because of his major depressive illness with agitated features, particularly his capacity to control his behaviour and to know that he ought not to do what he did.^[10] This was said to be shown by the reckless and self-destructive nature of his conduct. This assessment, which is uncontradicted, makes sense. The conduct concerned was quite irrational, particularly for someone in his position, which indicates that he was not functioning rationally at the time.
14. [14]
    The treating psychologist was Dr L Madsen, who provided a report on 27 February 2019.^[11] Dr Madsen confirmed that he had been treating the applicant, having seen him on nine occasions. He set out details of the offending and background to it, and the applicant’s personal history, which I need not repeat. Dr Madsen agreed with the diagnosis of Major Depressive Disorder. He said there was no personality disorder, or other mental health diagnosis. He explained the offending as occurring at a time the applicant was psychologically disturbed, because of his emotional state. He was at the time mentally unwell, because of an accumulation of chronic stressors. Dr Madsen explained that the applicant’s psychological state was now very different, as he had benefitted from psychiatric and psychological, and other support. The application of standard assessment tools for static and dynamic risk factors for reoffending indicated that his risk was very low.
15. [15]
    On 22 March 2019 Dr Varghese provided a note that he had been reviewing the applicant regularly, and he had had full resolution of his symptoms and no ongoing mood disturbance, so that he was fit to return to medical practice.^[12] On 26 June 2019 he provided a letter to the respondent, advising that the applicant’s circumstances were significantly different from what they had been at the time of offending.^[13] He was receiving treatment, his symptoms had resolved, he had improved insight into his condition, and returning to the workplace would not significantly increase the risk of relapse, or of further offending.
16. [16]
    On 1 May 2019 Dr Madsen provided a short report to the effect that in his opinion the applicant did not then have any impairment that affected or was likely to affect detrimentally his capacity to practice medicine.^[14] On 11 July 2019 Dr Madsen provided a further report, dealing with the conditions then proposed (and subsequently imposed) by the respondent.^[15] He noted that the applicant’s offending occurred in a complicated and stressful set of circumstances that are unlikely to be replicated in a future workplace. He said that the primary source of the applicant’s distress and failure to cope was that he had endured a prolonged and conflictual HR process, during which he was provided with little meaningful support or reassurance, and was afraid that further unjustified allegations would be made. This left him exhausted physically and psychologically. Dr Madsen expressed the opinion that the applicant’s return to a workplace in his previous role as a specialist emergency doctor would not place him at risk of relapse and further offending.
17. [17]
    On 1 August 2019 Dr D Alcorn, a psychiatrist, provided a report on the applicant to AHPRA, at its request. Dr Alcorn’s report is lengthy and thorough, and much of it covers the same ground as the earlier reports. He also diagnosed a Major Depressive Disorder, which he said was now largely remitted, with therapy and medication. He said there was no contemporaneous evidence of impairment from the psychiatric disorder, although he acknowledged that there was a clinically significant risk of relapse in the future. For this reason, he recommended a continuation of the applicant’s medication and therapy, and considered that his return to the workplace needed to be carefully managed.^[16]
18. [18]
    Following that report, it was discussed with the applicant by a nominee of the Medical Board. This was reported to the Medical Board, which then decided that it would not take any impairment action against the applicant.^[17] It concluded that the applicant does not have a health impairment that would detrimentally affect his capacity to practice medicine. Undertakings offered by the applicant were not accepted, the Board regarding them as unnecessary, in view of the obligation on the applicant to advise the Board of any changes in his health condition in the future, and on his treating psychiatrist to advise of any deterioration in the applicant’s mental state. Significantly, the Board did not proceed on the assumption that the conditions imposed by the respondent would remain in place.
19. [19]
    Dr Madsen provided a recent report on the applicant dated 23 June 2020.^[18] He confirmed that the initial referral was for treatment of the offending behaviour, and said that the applicant did not require further treatment for that behaviour, although he would likely benefit from psychological support in adjusting to his new situation. He had seen the applicant 31 times to that date. He confirmed his opinion about the cause of the offending expressed in his report of 11 July 2019, and noted a number of features of the applicant’s case which were regarded as protective for recidivism.
20. [20]
    The applicant has continued to see Dr Varghese and Dr Madsen approximately monthly. He and his wife have also been attending counselling, which is also continuing. In the witness box he impressed as straightforward and genuine, demonstrated remorse and insight into the background to the offending, and spoke of an improved attitude to work, and to a better understanding of his mental health.^[19] He is not as focussed on work as he was, and has a support team in place to assist if any difficulties arise. He was clearly still unhappy about the treatment he had received from the hospital authority, but he did not manifest anything which struck me as an indication of any problem with his mental health. This is unsurprising, given that the unanimous expert evidence is that the applicant is not, and has not for some time, manifested any sign of mental illness.

Approach to the review

21. [21]
    A practitioner who is the subject of immediate registration action can apply to the Tribunal for the decision to take that action to be reviewed: Health Ombudsman Act 2013 (“the Act”) s 63. In conducting the review, the Tribunal has all the functions of the respondent, and must hear and decide the application as a fresh hearing on the merits, to produce the correct or preferable decision.^[20] The Tribunal takes into account the material before it, and makes the decision appropriate at the time of the review.^[21] In accordance with the Act s 126, the Tribunal sat with assessors.^[22]
22. [22]
    The Act provides in s 58 relevantly as follows:

3. (1)
   The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if—

1. (a)
   the health ombudsman reasonably believes that—

1. (i)
   because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and

2. (ii)
   it is necessary to take the action to protect public health or safety; or

…

4. (d)
   the health ombudsman reasonably believes the action is otherwise in the public interest.

Example of when action may be taken in the public interest—

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners.

3. (2)
   The health ombudsman may take the action at any time, whether or not a complaint has been made in relation to the registered health practitioner.

23. [23]
    Section 59 provides for a show cause process, and s 62 provides that the action continues until set aside on review by the Tribunal, or set aside by the respondent. Under s 58A the respondent has power to vary immediate registration action if there is a material change, and by s 65, if satisfied it is no longer necessary, the respondent must remove the condition imposed. By s 84, if action is taken, the respondent must investigate the matter, refer it to the National Board, or refer it to the director of proceedings under Part 10 Division 2. By s 3(1), the main objects of the Act are:

1. (a)
   to protect the health and safety of the public; and

2. (b)
   to promote—

1. (i)
   professional, safe and competent practice by health practitioners; and

2. (ii)
   high standards of service delivery by health service organisations; and

3. (c)
   to maintain public confidence in the management of complaints and other matters relating to the provision of health services.

24. [24]
    Section 3(2) provides that the objects are to be achieved mainly by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services. The main principle for administering the Act is that the health and safety of the public are paramount: s 4(1). That is the main consideration for the Tribunal in deciding this matter: s 4(2)(c).

Cases

25. [25]
    A review by the Tribunal of immediate registration action occurred in Colagrande v Health Ombudsman [2017] QCAT 107. The applicant, a medical specialist, had been convicted of sexual assault on a patient, and sentenced to nine months imprisonment, suspended forthwith. The respondent imposed a condition like that imposed on the present applicant, that he have no contact with female patients, which effectively meant he was unable to work: [19]. On review, the Tribunal substituted conditions for chaperoning when seeing female patients.^[23] That practitioner had no other criminal history, and had been convicted after a trial, where he denied the offence, as he did before the Tribunal. He had, many years earlier, been the subject of disciplinary proceedings in the UK, for forging evidence of a qualification he did not have, but the Tribunal rejected the proposition that his meant he was untrustworthy and that therefore chaperone conditions were inadequate.
26. [26]
    Sheridan DCJ, the then Deputy President of the Tribunal, said that it was accepted that any immediate action taken ought to be the least onerous to address the relevant risk: [18], citing authority. She said that it was a question of what action was necessary to protect public health and safety: [19]. She noted at [46] that that was not a case where it was suggested that the practitioner was a sexual predator or had shown any tendency towards that type of conduct.
27. [27]
    In HSK v Nursing and Midwifery Board of Australia [2018] QCAT 418 her Honour reviewed action taken by the respondent under s 58, following boundary violations with two patients, one involving sexual intercourse. A condition that the applicant not provide health services to male patients between eighteen and 55 was removed on the review. The Board had sought a health assessment, and received a report from a psychiatrist who considered that the nurse had evidence of ongoing emotional vulnerabilities, and recommended that the condition be maintained. There was evidence, accepted by the Tribunal, that the psychiatrist had misinterpreted an aspect of the nurse’s history, and evidence from another psychiatrist that no condition was necessary. That decision turned on whether any condition was necessary because of the applicant’s impairment.

The respondent’s case

28. [28]
    The respondent acted under s 58(1)(d), but submitted that the Tribunal was also justified in acting under s 58(1)(a)(i), on the basis that there was a risk of psychological harm to a patient or other person if the applicant engaged in an invasion of the privacy of the person, particularly while treating the person. There is evidence to support a conclusion that the offending, if repeated, could cause psychological harm to the victim,^[24] although I expect that ordinarily the only effects would be anger and embarrassment. But accepting that there is a possibility (albeit probably small) of significant psychological harm to a future victim, whether there is a serious risk depends as well on the size of the risk of that occurring in the future.
29. [29]
    In the present case, there is clear and uncontracted evidence that at the time of the offending the applicant was suffering from a serious mental disorder which was at least a cause, if not the cause, of quite uncharacteristic, indeed irrational behaviour. The material contains a number of references in support of the applicant, obtained either for the criminal proceedings, or for the Tribunal hearing, some of which refer to the behaviour as uncharacteristic. A number of these were provided by women with whom the applicant had worked. The police found no evidence of such conduct on other occasions, or other illegal material on the applicant’s computer.

30. [30]
    Since then the source of the severe stress which precipitated the disorder has been removed, and the applicant has received appropriate treatment which has produced a situation where his disorder is in remission. He is continuing to receive treatment, including medication, and has developed a greater insight into the risk of mental health problems, which also reduces the risk of his not receiving appropriate treatment in the future. The uncontradicted expert evidence is that risk of reoffending is very low, and in the circumstances that is quite plausible. In those circumstances, the risk of similar behaviour, or indeed any improper intrusion into privacy, is so low that there is no basis for a conclusion that the respondent poses a serious risk to persons.
31. [31]
    I was referred to the decision of the then Deputy President of the Tribunal, Horneman-Wren DCJ, in Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20], as to the meaning of the concept “serious risk” in the context of an immediate action provision. Most of what was said in this paragraph I would respectively agree with, but in so far as the last sentence suggests a view that there is a serious risk to persons whenever the risk is not so remote as to be fanciful, and the harm if the risk materialises is more than trivial, I do not agree.
32. [32]
    More recently the concept of “serious risk” was discussed by the Deputy President of the Tribunal in Health Ombudsman v MacBean [2019] QCAT 300, in the context of the Act s 113. His Honour said at [12]:

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.”

33. [33]
    His Honour went on to say 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: [14]. That approach has been adopted in other decisions under s 113, and it seems to me with respect that his Honour’s approach provides better guidance to the term “serious risk” where it appears in s 58 as well. The question is whether, considering the factors referred to, the risk arising can fairly be described by the term “serious”, in its ordinary meaning. That is the approach I have adopted.

The public interest

34. [34]
    The concept of the “public interest” has no fixed technical meaning, and takes its content very much from the context in which it is used.^[25] In view of the objects of the Act, it would be largely focused on the effect on the health and safety of the community, but is wider than that. The example in the section shows that immediate action can be taken when a practitioner is charged with a serious criminal offence, in order to maintain public confidence in the provision of health services.^[26] That was the situation at the time the respondent was charged; it is no longer the case, but in circumstances where he has been convicted of the offences, it is appropriate to consider if public confidence in the provision of health services by health practitioners requires the action taken by the applicant now.
35. [35]
    In assessing this, I consider that it is not to be tested by considering public confidence based on a shallow and superficial view of the public to the relevant facts. It should be assessed by reference to a rational analysis and understanding of the situation, at least to the extent that that can be done at the time when the power is being exercised. Given the amount of time that has passed, and the amount of material which is now available, a more thoughtful and considered approach can be taken than may be possible when the power to take immediate action is exercised urgently. In particular, proper consideration can be given to the mental state of the applicant at the time of the offending.

Effect of mental illness

36. [36]
    The relationship between mental illness of the offender and the sentencing process was discussed by the Victorian Court of Appeal, in terms which have been approved by the Queensland Court of Appeal, in R v Verdins (2007) 16 VR 269 at [32]:

Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

37. [37]
    That approach has been endorsed many times by the Queensland Court of Appeal. In R v Goodger [2009] QCA 377 Keane JA cited this passage, and said at [21]:

This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion.

38. [38]
    These passages from Verdins and Goodger were cited with approval by the Court in R v Yarwood [2011] QCA 367 at [24] – [26], and have been followed on many other occasions.^[27] I accept that these decisions occurred in the punitive context of criminal sentencing, but the approach has been applied, to some extent, by the Tribunal in disciplinary proceedings. When the same Mr Yarwood, a solicitor, came to be dealt with in the Tribunal under the Legal Profession Act, he relied in his submissions to the Tribunal on extracts from the medical reports used when he was sentenced, and referred to the decision of the Court of Appeal.^[28] The Hon J B Thomas QC, who constituted the Tribunal, said in relation to this at [79]:

The existence of a psychiatric disorder which causes the conduct may be relevant if:

a) The conduct would not have occurred had it not been for the cause.

b) The conduct was an aberration, uncharacteristic of the way in which the legal practitioner would otherwise have acted.

c)  The cause has subsequently been removed.

39. [39]
    In that case, he found that the relevant conduct was not caused by the practitioner’s psychiatric illness, and he ordered that his name be removed from the roll of practitioners. The same approach was adopted by the then President of the Tribunal, Thomas J, in Legal Services Commissioner v XBN [2016] QCAT 471 at [76] - [82],^[29] on the basis that a psychiatric disorder may provide an explanation for the relevant conduct but it is not an excuse, although it may be taken into account in relation to sanction, in mitigation. The same approach has been applied by the Tribunal in health practitioner matters, in Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77 at [35], and in Health Ombudsman v HSK [2018] QCAT 419 at [28], and in Police disciplinary matters: Austin v Martin [2018] QCAT 120 at [38] – [38]^[30] and Flanagan v Gee [2020] QCAT 204 at [87].

40. [40]
    In the present case, the evidence is that the applicant’s offending was caused by the mental health issues he had at the time, and I accept that that was the situation, and that the conduct would otherwise not have occurred. This approach is therefore applicable. In the light of the various references in the material which speak very positively of the applicant, and bearing in mind he had no previous convictions, and the police found no evidence of prior offending on his phone or in his computer, I accept that this was an uncharacteristic aberration on his part. The medical evidence is that the mental health issues are now resolved or well controlled. The test posed by the Tribunal in Yarwood has been met. It follows that the applicant’s moral culpability is reduced, and personal and general deterrence are of less importance.

Consideration

41. [41]
    This I consider impacts significantly on the question of whether it is in the public interest for such conditions to be placed on the applicant’s registration. There is no particular reason for concern about the applicant’s future conduct. Apart from the involvement of his mental health condition, there is the consideration that the offending occurred away from his work. Because of the nature of his work, as an emergency physician, he would ordinarily be surrounded by a small retinue of junior doctors and nurses when interacting with patients, and would be focused on the treatment required. I consider that there is no real prospect of any future intrusion into a patient’s privacy.
42. [42]
    To conclude that a person who has committed such offences should not treat any female patients again because of it, without regard to (or despite) his individual circumstances and the explanation for his behaviour, is in my opinion a superficial approach. The confidence of the public in the medical profession is not to be assessed on the basis of the lowest common denominator. It should be assessed by reference to a thoughtful and balanced approach to the situation.^[31]
43. [43]
    There is no real risk posed by the applicant to the health and safety of the public. Other relevant matters are the maintenance of a regulatory system which responds in a fair and proportionate way to situations,^[32] the effect on the individual practitioner, and the desirability of the training and expertise of the health practitioner, developed at some cost over some time, not being wasted.^[33] There is also the consideration that immediate action should be no wider than is necessary in the circumstances.^[34] Another aspect of the public interest is the maintenance of public confidence in the provision of services by health practitioners.^[35]
44. [44]
    The respondent submitted that apart from the criminal convictions, the applicant had experienced other mental health issues which had not been disclosed to AHPRA. But the medical reports referred to for this submission speak only of the development of the mental health condition at the time of the offending, apart from some anxiety and depression about the time of moving to Australia from South Africa, which occurred prior to his being registered in Australia. There was no evidence of earlier bouts of mental health issues while registered which were not reported. He had been referred to a psychiatrist in March 2018 by his GP, who did not think he was depressed, but that was not then pursued, on advice from his lawyers that that would complicate the disciplinary issue he was then facing. Whether or not this was good advice, the applicant cannot be blamed for taking it.
45. [45]
    The respondent submitted that the offending would undermine community confidence in the integrity and trustworthiness of health practitioners; it raises doubts as to his ability to understand and respect a person’s privacy in a therapeutic relationship. There is some force in this if one looks at the offending without considering the circumstances under which he behaved in that way, although even then, this is relatively low level sexual offending, on only one occasion, and consideration should be given to the possibility of rehabilitation. The real difficulty with this argument is that it fails to have proper regard to the significance of the applicant’s mental health at the time of the offending, and the evidence of his subsequent recovery.
46. [46]
    In this case, the real issue is as to the state of the applicant’s mental health, and whether there is still a requirement for conditions to guard against some return of those problems, which might produce some risk of further uncharacteristic conduct. That has been considered by AHPRA, the appropriate body for considering an impairment, and it has decided that no conditions are required. The Tribunal should respect that decision, and in any case, on the expert evidence it was justified.
47. [47]
    The respondent submitted that the offences were such that female patients would not be able to have the confidence appropriate in the doctor-patient relationship with a doctor who had been convicted of such offences. Apart from anything else, I doubt if such an argument is relevant in the case of an emergency medicine specialist, whose patients are likely to value particularly skill and efficiency. People go (or are taken) to an emergency department because they want or need something done, and done now. They will be concerned about getting the appropriate treatment quickly, rather than developing a continuing professional relationship with the doctor.^[36]
48. [48]
    I was referred by the applicant to the decision in Medical Board of Australia v Wong [2015] QCAT 439. The practitioner had been charged with 27 counts of sexual assault against 19 complainants, all but one of whom were patients; the other was an employee.^[37] Criminal charges were stopped by a finding of the Mental Health Court, that at the time he suffered from untreated schizophrenia; a forensic order was imposed on him by the Court. He had since received treatment, and was properly medicated. In disciplinary proceedings, the Board sought that he be struck off, on the basis that he was guilty of professional misconduct under the third limb of the definition, and that he was not a fit and proper person to be registered. The Board argued that this was the only way to protect the public because of the risk of his reoffending, but that was rejected on the basis that, so long as he was properly medicated, he was a fit and proper person to be registered, and to practice medicine. The Tribunal imposed conditions to ensure his impairment was properly managed, but there were no gender restrictions, or conditions for a chaperone imposed, although the offending in that case was more widespread and more serious. Much of the reasoning of Horneman-Wren DCJ, the then Deputy President of the Tribunal, is of assistance to me, although it is too long to quote in detail.
49. [49]
    Many of the respondent’s submissions seemed to be directed to justifying immediate action in response to the conviction for the offences. This was a curious approach, since the respondent’s action was anything but immediate: the conviction was on 28 February 2019, the show cause notice was not sent until 18 June 2019, and the respondent imposed the more severe conditions on 9 August 2019.^[38] But I was not reviewing the respondent’s decision in this sense, I was considering whether any immediate action was necessary at the date of hearing. By then, the situation had developed, and more evidence was available, notably as to the applicant’s recovery.
50. [50]
    At one point the respondent submitted that the workplace complaints made against the applicant supported a conclusion that he has an oppositional or prejudicial attitude to women. I do not consider it appropriate for the Tribunal to re-investigate those complaints, and to reconsider the conclusions arrived at by the hospital authority. Indeed, I doubt very much whether it would be possible to do that properly. The applicant has suggested that to some extent those complaints were based on prejudice against him, because of his Muslim religion, and if there were substance in that, the complaints would be worthless as such evidence. Untangling that issue would be impossible, so the material must be treated as irrelevant. In any case, a number of female practitioners who have worked with the applicant provided him with references, knowing of his offending, and that is much more significant. Overall, I do not consider that the material suggests an oppositional or prejudicial attitude to women.
51. [51]
    The respondent relied on the decision in JQB v Department of Justice and Regulation [2015] VCAT 1721, where the Tribunal supported the removal of an assessment notice under the Working with Children Act 2005 (Vic) after the applicant had been convicted of the equivalent of this offence. But that decision occurred in the context of a different regulatory regime, and the evidence in that case was that the applicant required further psychological treatment to minimise the risk of further socially inappropriate behaviour when under workplace stress; in effect, his mental health issues had not resolved. That is not the effect of the evidence in this case, so the decision is distinguishable.
52. [52]
    There will have to be a hearing in due course of the reference to the Tribunal, but in circumstances where the applicant has for practical purposes been unable to practice in his speciality, or virtually at all as a doctor, he is in much the same position as if his registration had been suspended for eighteen months. I doubt whether the Tribunal at a hearing would impose a greater sanction than that in view of all the circumstances of the case, but that will be a matter for the Tribunal then, and will no doubt take into account what happens from now on.
53. [53]
    It was for these reasons that the Tribunal decided to order that the conditions imposed by the respondent be removed, and not to impose any replacement conditions. The decision was arrived at after consultation with the assessors, and I was comforted by the fact that it was supported by all of them. I will give directions for the filing of submissions as to costs.

Non-publication order

54. [54]
    At the hearing the respondent applied for a non-publication order covering the identity of, or information that may enable persons to identify, the following:^[39]

    1. (a)
       The victims of the criminal offences, or any family member of such victims.
    2. (b)
       Any person identified in a letter to the applicant from the hospital authority, or in attachments thereto.
    3. (c)
       Any person listed as providing information in another letter from the hospital authority to the applicant.
    4. (d)
       Any patient of the applicant, or any family member of any such patient, while working at the hospital.
55. [55]
    The applicant did not oppose such an order, but also applied for such an order in respect of the identity of himself, and his family members. He referred in evidence to the publicity received at the time of the offending, and to the effect this had on his family.^[40] The respondent submitted that such a wide order, including the identity of the applicant, was not justified within the terms of s 66 of the QCAT Act. At the conclusion of the hearing I made a temporary order covering all the material before the Tribunal, to give me time to consider the applicable principles. As well, it seems to me that there was a lot of material which had been filed by the respondent which was irrelevant, and was better dealt with by ordering that it be taken off the file.^[41]
56. [56]
    I have already mentioned that I consider the content of the hospital investigation into complaints about the applicant to be irrelevant to the issue before the Tribunal. There was a good deal of material filed which related to that, to virtually none of which was any reference made during the hearing, or in submissions.^[42] There was not one but two transcripts of the criminal proceeding in the Magistrates Court.^[43] There was material relating to the respondent’s decisions, notices of proposed decisions, submissions of the applicant and the reasons for the decisions taken by the respondent, to none of which I have had need to refer. There was an affidavit of J M Wade dated 10 February 2020 which exhibited a mass of the irrelevant material from the hospital, and 370 pages of medical records, including the hospital records of the private hospital where the applicant was an inpatient, and the clinical notes of Dr Varghese, Dr Madsen, the counsellor and the applicant’s GP. I was referred in submissions to none of this material; indeed the 110 pages of Dr Varghese’s notes were handwritten, and unintelligible to me.^[44]

57. [57]
    There was an affidavit of V Dutta dated 2 June 2020 which exhibited a bundle of material from the police concerning the offending. I had some reference to some of that, but it was unnecessary and inappropriate to exhibit the whole of what was supplied, instead of just such documents as were to be relied on at the hearing. Also exhibited were the application by the applicant to vary the conditions made to the respondent on 3 April 2020, and the respondent’s refusal of 21 May 2020. That this occurred is of some relevance, but the documents are not. I was not referred to the remaining documents, and they appear to be irrelevant and unnecessary.
58. [58]
    Much of this material should really be dealt with by ordering the respondent to take it off the Tribunal’s file; however, I have been unable to find in the Tribunal’s Act or Rules any provision for such a direction to be made. Unless a non-publication order is made generally, it would be appropriate to direct that those parts of the respondent’s material which were irrelevant be sealed up, and marked not to be opened except by a Presidential member, a judicial member, the Principal Registrar or the Registrar of the Court of Appeal. This would cover most of the material sought to be covered by the non-publication order sought by the respondent.
59. [59]
    The Queensland Civil and Administrative Tribunal Act 2009 s 66(2) authorizes a non-publication order if the Tribunal considers it necessary having regard to five specific matters, one of which is “(b) to avoid endangering the physical or mental health or safety of a person”, and another is “(e) for any other reason in the interest of justice.”
60. [60]
    The starting point is that the Tribunal operates in public, and the power to conduct all or part of a hearing in private should be strictly regulated: see Legal Services Commission v XBV [2018] QCAT 332 at [26], where the Hon P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts generally. That case concerned a barrister who had failed to notice in his brief a document fundamentally inconsistent with the client’s instructions, and had failed to appreciate the significance of a legal point raised by the matter. In that case there was evidence that the barrister had been receiving treatment from a psychiatrist and a psychologist for a major depressive disorder, and there was a risk of suicide.
61. [61]
    A non-publication order was made, but under another Act, and on the basis that that provision gave a wider discretion than did the QCAT Act. Reference was made to the decision of J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, where the open court principle was discussed. Under that principle, as applied in courts, it was said at p 45 that “information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other collateral disadvantage.”
62. [62]
    In Medical Board of Australia v Waldron [2017] QCAT 443 Sheridan DCJ noted that the discretion is to be exercised only if it was “necessary” and only where the circumstances came within one of the categories nominated. The fifth category, although expressed in broad terms, was to be interpreted as subject to that limitation. Her Honour referred to a number of authorities, most of which dealt with the open court principle in the context of a court. This approach to s 66(2)(e) was consistent with the approach adopted by the then President of the Tribunal, A Wilson J, in Cutbush v Team Maree Property Service [2010] QCATA 89 at [7] – [10]; see also Pharmacy Board of Australia v Christie [2016] QCAT 291 at [31] – [37].
63. [63]
    In Health Ombudsman v NLM (No 2) [2019] QCAT 366 Sheridan DCJ made a non- publication order in a matter which involved an impairment of the practitioner which was closely bound up with the relevant misconduct, although it was not an impairment matter. She pointed out that there are special statutory provisions for confidentiality in the case of an impairment matter, and said at [10]:

These provisions indicate the importance which the legislature attaches to the need for privacy in matters relating to the impairment of practitioners. There is good social policy reasons for that approach which justify a restriction to openness in the administration of justice. Clearly, the aim of the legislative regime is to encourage impaired practitioners to fully disclose their condition without fear that it might prejudice their otherwise good standing in the community.

64. [64]
    The position is similar in this case. The Board investigated whether the respondent had an impairment, and decided to take no action because of the improvement achieved by treatment. The effect of the evidence from the psychiatrist who undertook the health assessment, and other expert evidence, was that the respondent had suffered from an impairment, in the form of a psychiatric condition, at the time of the offending, although it was now in remission. Publication of the details of the matter would necessarily disclose this. I consider that in the circumstances of this case the situation is close enough to that in NML (No 2) to justify making a non-publication order as sought by the applicant. The decision made provision for the respondent to provide information to AHPRA concerning this proceeding. Subject to that, it is appropriate to apply the approach in NML and make a non-publication order in this case.
65. [65]
    I therefore set aside the third order made on 3 August 2020, and substitute the following order:

1. Save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency, until further order publication is prohibited, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s 66(1), of any medical reports about the applicant, and of:
   1. (a)
      The contents of a document or other thing produced to the Tribunal;
   2. (b)
      Any order made or reasons given by the Tribunal;

to the extent that it would identify:

3. (c)
   The applicant, or any member of his family;
4. (d)
   Any victim of the applicant’s offending;
5. (e)
   Any patient, family member of any patient or employee of the hospital where the applicant worked.

66. [66]
    I also propose to give directions for submissions in writing in relation to costs. These should cover whether the respondent should pay the costs of the proceeding, and on what basis, and whether in any case the respondent should pay the costs associated with the irrelevant or duplicated material filed by the respondent, and on what basis.