Health Ombudsman v Gebusion[2021] QCAT 102

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Prince Harry Bass Gebusion (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
2. [2]
   The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct and seeks orders by way of sanction.
3. [3]
   The parties are agreed as to the facts constituting the conduct the subject of the referral and that such conduct should be characterised as professional misconduct. They also agree that orders by way of sanction should include a reprimand of the respondent and a cancellation of his registration. The dispute between the parties is confined to the length of time that the respondent should be disqualified from applying for re-registration and the scope of a concurrent prohibition order prohibiting the respondent from providing health services whilst unregistered.

The respondent and the conduct

4. [4]
   The respondent is currently 36 years of age.
5. [5]
   The respondent was first registered as a nurse on 1 August 2012. Prior to the conduct the subject of the referral, the respondent had no disciplinary or criminal history.
6. [6]
   At the time of the conduct, the respondent was employed as a registered nurse on a permanent part-time basis at a south east Queensland private hospital (the hospital). The respondent commenced such employment in or about November 2016.
7. [7]
   Patient A was 18 years old at the time of the offences, and had been admitted to the hospital for pyelonephritis on 10 January 2018.
8. [8]
   The respondent was rostered to perform a night shift on 10 January 2018. He attended Patient A’s private hospital room several times during the evening. During this time, Patient A was in bed and was receiving treatment (fluids and medications) via an intravenous cannula.
9. [9]
   At approximately 9:00pm, after Patient A’s mother had left, the respondent entered her room and introduced himself. He asked if she was hungry and she said that she was. The respondent then left Patient A’s room and returned with some food for her.
10. [10]
    Later in the evening, having brought more food for Patient A, the respondent stayed in her room and began talking to her. He told Patient A he was aged in his early thirties. The respondent said he thought he had seen her working at a McDonald’s restaurant.
11. [11]
    The respondent then asked Patient A about her tattoos and asked to see one. She pulled her gown up and shorts down and showed him a large tattoo of a dog on her upper right thigh, at which point the respondent rubbed the tattoo. Patient A did not give the respondent permission to touch her.
12. [12]
    The respondent told Patient A he was single. He then asked Patient A if she was on Snapchat and she said that she was. The respondent then told Patient A to take out her phone so she could approve his Snapchat request.
13. [13]
    The respondent then asked Patient A if she was in any pain and she replied, “not really, no”. The respondent then said he gave good massages. Patient A was lying on her back and the respondent started rubbing her leg. The respondent then said he was going out to get cream for a massage.
14. [14]
    The respondent returned with a little tube of cream and then massaged Patient A with his bare hands. The respondent massaged both of Patient A’s legs, mainly her right leg, high up on her thigh until he reached her pubic bone and the crease/groin area. The respondent touched Patient A over the top of her underpants, touching her outer genital area. This continued for about five minutes. Patient A then felt the respondent rubbing her genital area on the right side of her vagina but not actually touching the opening of her vagina.
15. [15]
    The respondent also moved his hand, with a flat palm, up Patient A’s abdomen and between her breasts. He rubbed up and down between Patient A’s breasts a few times and then moved his hand down to the right side of her body to her buttocks.
16. [16]
    At this point, the respondent told Patient A to roll over so he could do the other side. Patient A said, “No thank you I’m just going to try and go to sleep.”
17. [17]
    The respondent then leaned over Patient A and kissed her on the forehead. He said good night and left the room. Patient A fell asleep.
18. [18]
    When Patient A woke up the next morning at about 5:30am, she sent a message to her mother stating that “the night nurse is creeping me out”.
19. [19]
    At about 5:00pm on 11 January 2018, Patient A spoke to a female nurse and asked if she could have a different night nurse, because she felt uncomfortable.

Subsequent events

20. [20]
    On or about 12 January 2018, Patient A spoke to the ward Nurse Unit Manager and made a complaint about the respondent’s conduct.
21. [21]
    The applicant received a mandatory notification about the respondent’s conduct on 5 February 2018.
22. [22]
    On or about 5 February 2018, the respondent was terminated from his employment at the hospital. Subsequently, he was employed on a casual basis as a registered nurse at an aged care home.
23. [23]
    On 14 March 2018, Patient A provided a statement to the Office of the Health Ombudsman (OHO).
24. [24]
    On 18 and 19 April 2018, the respondent completed education courses relating to professional ethics and professional boundaries.
25. [25]
    On 20 April 2018, the applicant provided the respondent with a show cause notice advising that it was proposing to take immediate registration action.
26. [26]
    On 1 June 2018, after giving the respondent an opportunity to show cause, the applicant issued an immediate registration action notice imposing conditions on the respondent’s registration, to the effect that the respondent was not permitted to have contact with female patients.
27. [27]
    Following this immediate registration action and imposition of the conditions, the respondent’s employment with the aged care home was terminated.
28. [28]
    On or about 19 September 2018, Patient A made a formal complaint of sexual assault to police. On or about 20 September 2018, Patient A provided a statement to the police about the sexual assault.
29. [29]
    On or about 24 May 2019, the respondent was arrested and charged by police with one count of sexual assault.
30. [30]
    On 28 November 2019, the respondent was convicted in the Magistrates Court on his own plea of guilty of one count of sexual assault, contrary to section 352(1)(a) of the Criminal Code (Qld), and sentenced to 12 months’ imprisonment with the term of imprisonment to be suspended for three years.
31. [31]
    On 23 April 2020, after giving the respondent an opportunity to show cause, the applicant varied its immediate registration action to suspend the registration of the respondent.
32. [32]
    On or about 8 July 2020, the respondent surrendered his registration. For reasons that were not able to be explained by the parties at the hearing, and despite the terms of section 137 of the Health Practitioner Regulation National Law (Queensland), the respondent continues to be registered with the Register noting that such registration is suspended.
33. [33]
    As a consequence of his conduct, the respondent has not worked as a nurse for a period of about two years and nine months.
34. [34]
    The respondent denied the conduct during investigations by the hospital and the OHO in 2018. He declined an interview with police prior to his arrest on 24 May 2019. His plea of guilty in the Magistrates Court and admissions in these proceedings means Patient A has not been required to give evidence.

Characterisation of the Conduct

35. [35]
    Both parties submit that that the respondent’s conduct should be characterised as professional misconduct.

36. [36]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

37. [37]
    The Tribunal readily finds that all three limbs of the definition are apt to the respondent’s conduct.
38. [38]
    Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

39. [39]
    The conduct of the respondent is a very serious instance of professional misconduct. The respondent exploited the power imbalance between himself and an extremely vulnerable young woman for his own sexual gratification. The sexual assault was the culmination of a protracted and deliberate crossing of professional boundaries by the respondent. It caused fear and distress to Patient A who, in her OHO statement, stated:

I was very concerned and I was scared that he might put something in my drip that I didn’t know what it was.

…

Harry’s actions made me feel very uncomfortable and inappropriate, however I didn’t want to upset him or say anything as he was in control of my wellbeing. I felt very vulnerable and unsafe and it wasn’t until the next day that it hit me how uncomfortable I was with the situation.

…

This incident has made me very stressed and anxious if anyone comes near to touch me. I also worry that he will turn up to my work as he knows where I live.

40. [40]
    The purpose of disciplinary proceedings such as these is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[1] the imposition of a disciplinary sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
41. [41]
    Both parties submit that the respondent should be reprimanded. His disgraceful behaviour deserves denunciation by the Tribunal.
42. [42]
    Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
43. [43]
    Both parties submit that the respondent’s registration should be cancelled. The seriousness of the respondent’s misconduct requires a cancellation of the respondent’s registration and his further preclusion from practice for a period of time.
44. [44]
    Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
45. [45]
    The parties disagree as to the period of time that should be ordered during which the respondent is disqualified from applying for re-registration. The applicant submits that the period should be no less than three years. The respondent submits it should be no more than six months.
46. [46]
    In reality, the argument is likely moot. The respondent has deposed that he has regretfully abandoned a nursing career and is studying to gain qualifications towards alternative career paths. Nevertheless, the Tribunal must determine an appropriate period, taking into account the period of about two years and nine months the respondent has already been precluded from practice as a consequence of his conduct.
47. [47]
    The respondent deposes to his sincere remorse for his conduct. The Tribunal accepts he is truly remorseful.
48. [48]
    The respondent points to his completion of education courses relating to professional ethics and professional boundaries prior to being charged by police as being indicative of insight. That should be viewed with some scepticism given that the courses were completed at a time that the respondent was still denying the substance of his conduct during the investigation by the OHO and seeking to rely upon completion of the courses in the context of much lower level boundary crossing he then admitted. Nevertheless, the Tribunal accepts the respondent’s evidence that he has more recently developed insight into the extent of the wrongness of his behaviour.
49. [49]
    In his favour, the respondent pleaded guilty in the Magistrates Court and co-operated fully in the conduct of proceedings before the Tribunal.
50. [50]
    The parties made submissions regarding previous tribunal decisions involving conduct of the same nature by health practitioners.
51. [51]
    Health Ombudsman v Arora^[2] was a much more serious case, involving sexual assaults upon three vulnerable patients during two separate night shifts. There was no evidence of insight or remorse.
52. [52]
    Health Ombudsman v Mutasa^[3] was a considerably less serious case where particular prejudice to the respondent due to inordinate delay in proceedings by the applicant affected the orders made by the Tribunal. There is no such feature in this case.
53. [53]
    Pharmacy Board of Australia v Tan^[4] is of more assistance. The respondent provisional pharmacist lured a 22 year old female customer into an office in a pharmacy under the pretence of examining a rash. He digitally raped the customer. She suffered significant psychological distress as a result. The respondent denied the offence to police, attempted to leave the country and attempted to persuade persons not to notify the Board. He also failed to report the charges and his conviction to the Board. The respondent was sentenced to six months’ imprisonment, a three-year community corrections order and 300 hours community service for the offence of rape. The Tribunal made a finding of professional misconduct, reprimanded the respondent, cancelled the respondent’s registration and disqualified him from re-applying for registration for a period of four years. That resulted in an effective total preclusion from practice of more than six years. Rape is, pursuant to the criminal law in both Victoria and Queensland, a more serious offence than sexual assault because of the greater degree of sexual violation. The difference in seriousness of the conduct is reflected in the severity of the criminal sentence of the respondent in the matter, as compared to the criminal sentence imposed on the respondent in this matter.
54. [54]
    Medical Board of Australia v Thomas^[5] concerned a psychiatrist who was convicted of the sexual assault of a patient and sentenced to two years imprisonment with a non-parole period of 14 months. There were aspects of the sexual assault that arguably made it more objectively serious than that of Patient A. Of more significance in distinguishing the case is the fact the sexual assault took place after a prolonged period, over several years, of grooming behaviour by the respondent of the vulnerable psychiatric patient who suffered significant adverse effects. Given that the respondent was aged 71 years and had declared his intention not to practise again, the Tribunal considered it was general deterrence rather than specific deterrence that was of most significance. The respondent was reprimanded and disqualified from applying for registration as a health practitioner for a period of five years. Given the suspension of the respondent’s registration in June 2017, that resulted in an effective total preclusion from practice of about eight years and nine months.
55. [55]
    In the present case, he applicant submits that, given the respondent’s indication that he does not intend to return to nursing, recency of practice requirements on any future application for registration are irrelevant to the determination of an appropriate total preclusion period and, hence, the period of disqualification to be ordered by the Tribunal. The respondent submits to the contrary, observing that the respondent might change his mind about abandoning a nursing career.
56. [56]
    Unlike Medical Board of Australia v Thomas, this is not a case where the advanced age and the health of the practitioner made a return to practice unlikely in any event. The Tribunal observed in Pharmacy Board of Australia v Tan^[6]:

If Mr Tan can be rehabilitated and return to professional life safely, it may be desirable and in the public interest that he be able to do so. He is relatively young. The period of disqualification takes these factors into account. 

57. [57]
    The terms of the Nursing and Midwifery Board of Australia’s “Registration Standard: Recency of Practice” relevantly require an applicant for registration to demonstrate completion of a minimum of 450 hours of practice within the previous five years. If the respondent is disqualified from applying for re-registration for no more than two years, he might be able to satisfy such requirement upon an application for re-registration. If disqualified for more than two years, he will not be able to do so. This particular circumstance has acted as a limiting factor in the Tribunal’s determination of an appropriate disqualification period.
58. [58]
    A disqualification period of two years would result in an effective total preclusion period of about four years and nine months.
59. [59]
    A comparison of the circumstances of this matter and those of the other cases referred to, in particular Pharmacy Board of Australia v Tan, suggests such an order would not fall outside a permissible range of sanction. In the view of the Tribunal, it is sufficient to meet the protective purposes of sanction and considerations of recency of practice mean that any longer period might have an impermissible punitive effect.
60. [60]
    Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of two years.
61. [61]
    The applicant seeks a further order, pursuant to section 107(4)(b)(ii) of the Health Ombudsman Act 2013 (Qld), prohibiting the respondent from providing any health service until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of another state or territory of Australia. The respondent contends that, if such an order is made, it should address specifically the risk exemplified by the misconduct and be limited to prohibition of provision of health services to females.
62. [62]
    The Tribunal accepts that the seriousness of the respondent’s conduct is such that the protective purposes of sanction require that the respondent be prohibited from providing health services until such time as he might satisfy the regulatory authority that he is a fit and proper person to be registered. Such an order is not directed solely towards immediate protection of persons from the respondent, but also for reasons of general deterrence of other registered practitioners and to express the Tribunal’s denunciation of the respondent’s conduct. Those purposes are best served by an order not limited by gender.
63. [63]
    Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of another state or territory of Australia.
64. [64]
    The applicant also seeks an order setting aside the immediate registration action by the applicant to impose a gender restriction on the respondent’s registration and subsequently suspend his registration. Why it is necessary to do so once the respondent’s registration is cancelled is unclear. Perhaps it permits the ticking of a box on some record maintained by the OHO. The Tribunal will make an order in the terms sought by the applicant.
65. [65]
    Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action imposed by the Health Ombudsman (effective from 1 June 2018 and varied on 23 April 2020) is set aside.

Costs

66. [66]
    The applicant did not seek a costs order and the orders of the Tribunal will confirm that the default position as to costs pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies.