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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Strong v Health Ombudsman; Health Ombudsman v Strong  QCAT 105
Mark Raymond Strong
(applicant in OCR329-19; respondent in OCR058-20)
(respondent in OCR329-19; applicant in OCR058-20)
Occupational regulation matters
30 March 2021 (ex tempore)
30 March 2021
Judge Allen QC, Deputy President
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the practitioner is an unregistered health practitioner – where the practitioner is a massage therapist – where two complainants accuse the practitioner of boundary violations – where the practitioner seeks directions pursuant to section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that the Health Ombudsman obtain and provide to the practitioner certain information about the complainants’ medical histories and criminal histories – whether the Tribunal has power to make such directions – whether, if the Tribunal has such power, it should exercise the discretion to make such directions
Health Ombudsman Act 2013 (Qld), s 68, s 103, s 104, s 113
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 62
Legal Services Commissioner v Leneham  QCAT 96
Nursing and Midwifery Board of Australia v HSK  QCA 144
R v Spizziri  2 Qd R 686
P Morreau instructed by DLA Piper
C Templeton instructed by the Office of the Health Ombudsman
REASONS FOR DECISION
- The application to review a decision filed 1 October 2019 (OCR329-19) is an application by the practitioner to review a decision of the Health Ombudsman to issue an interim prohibition order, pursuant to section 68 of the Health Ombudsman Act 2013 (Qld) (HO Act), prohibiting the practitioner from having contact with female patients and placing other conditions upon his practice as a massage therapist. Such interim prohibition order was made by the Health Ombudsman because of a complaint by complainant A that on 1 September 2019, the practitioner sexually assaulted complainant A during a remedial massage consultation.
- The referral filed on 25 February 2020 (OCR058-20) is a referral of matters concerning the practitioner pursuant to sections 103(1)(a) and 104 of the HO Act by the director of proceedings on behalf of the Health Ombudsman. The Health Ombudsman seeks a finding pursuant to section 113(1) of the HO Act that the practitioner is a serious risk to persons and that a prohibition order be made pursuant to section 113(4) of the HO Act. The grounds relied upon are the alleged sexual assault of complainant A and further allegations that, on 29 May 2019, during a massage of complainant B, the respondent failed to maintain appropriate draping standards and privacy of patient B and subsequently contacted patient B in a way that failed to maintain appropriate professional boundaries.
- The practitioner denies sexually assaulting complainant A and, although admitting some facts in relation to his contact with complainant B, denies any inappropriate conduct during the course of the massage of complainant B or that his subsequent conduct breached professional boundaries. The practitioner resists the finding of a serious risk or the making of a prohibition order pursuant to section 113 of the HO Act.
- It is clear that the credibility of both complainant A and complainant B are critical in both proceedings. Both the honesty and reliability of each of the complainants will be in issue in the proceedings.
- The practitioner has filed an application for miscellaneous matters seeking directions pursuant to section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) in the following terms:
The practitioner seeks that the Health Ombudsman obtain from the witnesses, complainant A and complainant B, the following information and provide it to the practitioner:
- (1)Details of any mental health diagnoses made at any time.
- (2)Details of any medications prescribed from 1 September 2017 until the present.
- (3)Names, dates and locations of any and all general practitioner(s) and/or mental health professional(s) who have provided counselling or other mental health treatment from 1 September 2015 until the present.
The practitioner also seeks that the Health Ombudsman obtain and disclose information regarding the criminal histories, if any, of complainant A and complainant B.
- The practitioner refers to evidence from the mother of complainant A as to observations of distress of complainant A following her massage treatment session. The practitioner also refers to further contents of a statement of the mother of complainant A, in which she states that she has subsequently observed complainant A doubting her judgment, apparently losing confidence in herself, being “depressed, anxious” and often needing reassurance and encouragement to leave home for social activities. The mother of complainant A refers to complainant A continuing to suffer panic attacks. The practitioner also points to a confidential health history form completed by complainant A prior to her massage session on 1 September 2018, in which complainant A indicated she suffered from depression and that her current medications included the anti-depressant medication Effexor.
- The practitioner foreshadows that, if the Tribunal accedes to the application to make the orders sought, depending upon the information provided by the Health Ombudsman, the practitioner may seek an order pursuant to section 63(1) of the QCAT Act requiring production of treatment/counselling records from third parties.
- The practitioner submits that the information sought is easily obtainable by the Health Ombudsman from its witnesses, their medical practitioners and/or the Queensland Police Service. He submits that the information can reasonably be expected to contain information that goes to the credit and reliability of each complainant. The practitioner contends that it is “on the cards” that such material will disclose information relevant to the credibility and reliability of complainant A and/or complainant B, such that there is a legitimate forensic purpose in obtaining such information.
- In response to the Health Ombudsman’s reliance upon the decision of Legal Services Commissioner v Leneham (Leneham), the practitioner submits that the particular statement by the Tribunal relied upon by the Health Ombudsman does not form part of the ratio of the decision and does not bind me to decide that there is no power to make the orders sought pursuant to section 62(3) of the QCAT Act. Whilst such a statement by the Tribunal might be of persuasive value, the practitioner seeks to distinguish the circumstances of that matter, where an undertaking was given by the Legal Services Commissioner to make reasonable efforts to obtain such information and disclose it to the respondent practitioner, with the circumstances of this matter, where no such undertaking is forthcoming from the Health Ombudsman.
- The practitioner refers to the terms of section 28 of the QCAT Act and in particular, section 28(3)(c), which provides that the Tribunal “may inform itself in any way it considers appropriate” and subparagraph (e), which requires the Tribunal to “...ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all relevant facts.”
- The Health Ombudsman submits, firstly, that there is no power for the Tribunal to make the directions sought. The Health Ombudsman refers to the terms of section 62(3) of the QCAT Act, which empowers the Tribunal to give a direction:
… requiring a party to the proceeding to produce a document or another thing or provide information to—
- (a)the tribunal; or
- (b)another party to the proceeding.
- The Health Ombudsman submits that, whilst the terms of section 62(3) of the QCAT Act empower the Tribunal to direct a party to “provide” information to another party to the proceeding, they do not expressly empower the Tribunal to direct a party to obtain information and provide it to either the Tribunal or another party to the proceeding.
- A senior legal officer of the Office of the Health Ombudsman has deposed that the Office of the Health Ombudsman does not have medical records or knowledge of the information sought by the practitioner. That evidence is not challenged by the practitioner.
- The Health Ombudsman further submits that, if the Tribunal was to find that it did have a power to direct the Health Ombudsman to obtain and provide such information, it would decline to exercise its discretion to so direct the Health Ombudsman.
- With respect to complainant B, the Health Ombudsman submits that there is absolutely no material to base any expectation that there might be information of the type sought by the practitioner. With respect to patient A, the Health Ombudsman submits that the information that patient A suffered from depression and was prescribed anti-depressant medication at the time of the alleged sexual assault and suffered distress and anxiety and other psychological consequences subsequently, is insufficient to make it “on the cards” that the information sought would be forthcoming in any event.
- More particularly, the Health Ombudsman submits that policy considerations, such as those underlying the sexual assault counselling privilege provisions of the Evidence Act 1977 (Qld), would lead the Tribunal to exercise its discretion against making such directions.
- With respect to the directions sought regarding the criminal histories of patients A and B, the Health Ombudsman submits that there is no reason why the practitioner could not seek orders for production of such documents from the Queensland Police Service pursuant to section 63 of the QCAT Act and that would militate against any exercise of discretion to make such orders as sought pursuant to section 62 of the QCAT Act, insofar as the criminal histories are concerned.
- The terms of section 62(3) of the QCAT Act empower the Tribunal to direct a party to a proceeding to produce a document or another thing or “provide” information to the Tribunal or another party to the proceeding. I do not construe such provision as empowering the Tribunal to direct that a party obtain information and then provide it to the Tribunal or another party to the proceeding.
- In addition to the statement of the Tribunal in Leneham, I note also the decision of the Court of Appeal in Nursing and Midwifery Board of Australia v HSK, in which the Court of Appeal held that the procedural power pursuant to section 62 of the QCAT Act did not empower the Tribunal to direct a party to involuntarily attend a psychiatrist for a health assessment. The Court of Appeal contrasted the type of procedural orders pursuant to section 62 of the QCAT Act with directions compelling a party to do something. Although the circumstances are not entirely analogous, they lend some support to a conclusion that the procedural nature of the terms of section 62 do not, notwithstanding the terms of section 28 of the QCAT Act, provide the Tribunal with a wide power to compel parties to proceedings to do things beyond those things expressly provided by the terms of section 62, as construed according to orthodox principles of statutory interpretation.
- Even if I had ruled that the Tribunal had power to make directions of the type sought by the practitioner, I would have exercised my discretion not to make such directions.
- In relation to patient B, there is absolutely no evidential basis to establish a legitimate forensic purpose for the information sought. In relation to patient A, the material referred to is insufficient to establish such a substantial evidential basis for such purpose as to tilt the balance in favour of making orders for disclosure of such information.
- What the practitioner is really engaging in is the first step of a proposed two-step fishing expedition in circumstances where discretionary considerations, including those policy considerations underlying the sexual assault counselling privilege provisions of the Evidence Act, would weigh against ultimately making any orders sought pursuant to section 63 of the QCAT Act to obtain medical or other records relating to either complainant A or complainant B.
- In relation to the criminal histories, I would have exercised my discretion not to make such a direction compelling the Health Ombudsman to obtain such information from the Queensland Police Service in circumstances where the practitioner, if he wishes, can apply, pursuant to section 63 of the QCAT Act, for orders compelling the Queensland Police Service to produce such documents.
- The application for miscellaneous matters also sought a direction that the Health Ombudsman provide further and better particulars of allegations in the referral. The Health Ombudsman has undertaken to provide such further and better particulars, and the parties do not seek directions of the Tribunal regarding particulars in those circumstances.
- For these reasons, the application for miscellaneous matters is refused.
 Patients’ names redacted and, for the purposes of clarity, references to the respondent replaced with references to the practitioner and references to the applicant replaced with references to the Health Ombudsman.
R v Spizziri  2 Qd R 686.
  QCAT 96 at .
  QCA 144.
- Published Case Name:
Strong v Health Ombudsman; Health Ombudsman v Strong
- Shortened Case Name:
Strong v Health Ombudsman; Health Ombudsman v Strong
 QCAT 105
Judge Allen QC, DP
30 Mar 2021