Health Ombudsman v Cottam[2021] QCAT 146

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Director of Proceedings on behalf of the Health Ombudsman (applicant) has referred a health service complaint against David Jack Peter Cottam (respondent) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The applicant seeks that the Tribunal decide, pursuant to section 113(1) of the HO Act that, because of the respondent’s conduct, he poses a serious risk to persons and that the Tribunal make a prohibition order pursuant to section 113(4) of the HO Act.
2. [2]
   The respondent is 27 years old and was 23 at the time of the conduct the subject of the referral. He had no criminal history prior to the conduct which is the subject of the referral.
3. [3]
   At the time of the conduct, the respondent was employed as a support worker by a disability care service. The respondent worked at the facility initially on a casual basis from about May 2014 and subsequently on a permanent part-time basis. In his role as a support worker, the respondent provided health services to the residents of the facility which included assistance with medication, showering, dressing, transferring from bed to wheelchair, toileting, incontinence management, menstrual management and attending to other personal care needs. He was thus a “health service provider” and “health practitioner” within the meaning of those terms in schedule 1 and section 8(a)(i) of the HO Act. The respondent was not a registered health practitioner, disability support work not being a health profession pursuant to the Health Practitioner Regulation National Law (Queensland) (National Law).
4. [4]
   The respondent’s conduct concerns a severely disabled patient of the facility. The patient suffered from cerebral palsy, epilepsy, microcephaly, and was unable to walk. She had an intellectual disability and could not communicate verbally. She was wholly dependent upon the care and support of staff at the facility.
5. [5]
   On 26 September 2016, the respondent was performing his duties at the facility. With the assistance of another support worker, he transferred the patient from her bed into a shower bed. The other support worker left the room and the respondent undressed the patient. The patient was laying on the shower bed when the respondent removed his pants and attempted to have sexual intercourse with her. The other support worker re-entered the bathroom to observe the respondent with his pants and underwear below his knees and his penis exposed. The patient was naked. The other support worker left the bathroom and advised a senior support worker of what he had observed. Other support workers assisted the respondent in transferring the patient to her wheelchair.
6. [6]
   During a conversation between the respondent and the other support worker who had observed his conduct, the respondent admitted to what the other support worker had observed. He said he was not thinking; that it was the first time ever; and that he could not believe what he did. He admitted to the conduct being for his sexual satisfaction.
7. [7]
   The following day the respondent made similar admissions to an area manager for the disability service. He admitted to trying to have sex with the patient. That same day the respondent was arrested by police and charged with an offence of indecently dealing with a person with an impairment of mind under his care. The respondent’s employment at the facility was terminated on 30 September 2016.
8. [8]
   On 6 October 2016, the applicant received information from the Queensland Police Service that the respondent had been charged. On 7 October 2016, the applicant decided, pursuant to section 68 of the HO Act, to issue an interim prohibition order prohibiting the respondent from engaging in any employment relating to the provision of any health service.
9. [9]
   On 27 April 2018 in the District Court at Townsville, the respondent was convicted on his own plea of guilty of one count of attempted carnal knowledge of a person with an impairment of mind, under care, contrary to section 216(1) and (3)(b) of the Criminal Code and was sentenced to three years imprisonment with eligibility for parole fixed at 26 April 2019.
10. [10]
    The applicant subsequently filed the referral before the Tribunal. The respondent did not file a response. He did attend a number of directions hearings by telephone.
11. [11]
    On 26 August 2020 the respondent emailed a letter to the Tribunal stating that he did not intend to participate in a compulsory conference and that he did not dispute any of the evidence tendered and that he was prepared to accept the decision reached in this matter.
12. [12]
    On 4 May 2021, solicitors, on behalf of the respondent, emailed a letter to the Tribunal confirming that the respondent did not wish to appear either by legal representatives or personally at the hearing, would abide by orders made by the Tribunal, did not intend to dispute or agree with any of the material contained in the hearing brief and the applicant’s written submissions. The letter advised that the respondent had obtained employment in an industry in no way connected with the type of employment he was engaged in at the time of the conduct.
13. [13]
    The applicable powers of the Tribunal are to be found in the repealed part 10, division 4 of the HO Act.^[1] In particular, section 113(1) of the HO Act provides “QCAT must decide if, because of the health practitioner’s health, conduct or performance, the practitioner opposes a serious risk to persons.”
14. [14]
    Section 113(2) of the HO Act provides a non-exhaustive list of the types of conduct which may constitute a serious risk, including, in sub-paragraph (c), “engaging in a sexual or improper personal relationship with the person”.
15. [15]
    Section 113(4) provides as follows:

If QCAT decides the practitioner poses a serious risk to persons, it may make an order (a prohibition order) –

1. (a)
   prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service; or

2. (b)
   imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner.

16. [16]
    The term “serious risk” is not statutorily defined. It 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.”
17. [17]
    It is helpful to consider the following:

    1. (a)
       the nature of the risk;
    2. (b)
       the likelihood of it eventuating; and
    3. (c)
       the seriousness of the consequences if the risk eventuates.
18. [18]
    Of course, it is not necessary that the likelihood of the risk of eventuating be high. The seriousness of the consequences, if the risk were to eventuate, may mean that there may be a finding of a serious risk, even in circumstances where the likelihood of it eventuating cannot be described as high. In that respect, I agree with the comments of Judicial Member D J McGill SC in Health Ombudsman v Raynor [2021] QCAT 25 at 21:

The three factors in MacBean^[2] are considerations, not elements of a serious risk that must be satisfied, and I consider that it is possible to find that the actions of a practitioner can pose a serious risk to persons even if the likelihood of the risk eventuating is low. What matters is whether, bearing in mind those factors, and taking into account their strengths and weaknesses, it is appropriate in the light of all the evidence to find that there is a serious risk to persons.

19. [19]
    In this matter, the nature of the risk is that the respondent, in the course of working as an unregistered health practitioner, might sexually assault another patient. With respect to the assessment of the likelihood of that occurring if the respondent was to return to providing health care to vulnerable persons, I note the contents of the report of Mr Walkley, forensic and clinical psychologist, dated 19 March 2018, which was obtained by the respondent’s solicitors for the purpose of sentence proceedings in the District Court.
20. [20]
    Mr Walkley assessed the respondent’s risk of reoffending by the use of two actuarial instruments. According to the Sexual Adjustment Inventory instrument, the respondent’s scale score was such that he was in the moderate risk range of committing a sexual offence. According to the Sex Offenders Appraisal Guide, the respondent obtained a score which placed him in the low risk category 3 out of 9, with risk of sexual recidivism being 23 per cent over seven years.
21. [21]
    Mr Walkley expressed the following opinion:

Prior to Mr Cottam commencing and finishing a Sexual Offenders Treatment Program it seemed quite clear he had very little insight and very little understanding in terms of why he offended as he did and how he would prevent a repetition.

By his view, he viewed he had made a “bad mistake” and for this he felt a great deal of shame, self-revulsion and loathing as well as remorse and guilt.

It seems clear from a clinical perspective Mr Cottam is a man who has suffered a significant issue in terms of relating to women, establishing sexual relationships with women and then performing as he would hope within such relationships. He continually failed in all regards, including his ability to perform sexual intercourse.

Ultimately this led to a severely deficient sense of himself as a male and more particularly as a sexual male and who feared the rejection often experienced and the shame and embarrassment of repeated sexual dysfunction.

It seems quite clear Mr Cottam viewed his victim at the facility as vulnerable, available but importantly, someone who would not reject him and with whom he would be able to experience sexual pleasure unjudged and unmeasured.

Subsequent to his involvement in the Sexual Offenders Treatment Program Mr Cottam has now gained a great deal of insight and understanding into his psychosexual development, the difficulties he feels and how and when he would be vulnerable.

The measures of risk used are particularly useful with regards evaluations of a normal cohort of sex offenders which include contact sex offenders as well as sexual assault and rape offenders. Most of these normative individuals have not been exposed to treatment programmes.

However, Mr Cottam has availed himself of considerable intervention. From my interactions with Mr Cottam he demonstrated a significant understanding and development of insight into his offences. He formed a reasonably good understanding of the situational and life-based circumstances which could place him at risk and further trigger offending and has learned of the mechanisms to control this and prevent any future offences.

I formed the view when starting with a reasonably low-risk offender such as Mr Cottam presented, when one applies the ameliorating and mitigating factors of gains made by him through insights and knowledge obtained from the Sex Offenders Treatment Program then based on dynamic rather than static measures, his risks of recidivism are very much at the lower end of the range. In my view this would place his risk of recidivism at about 10% over the next 7 years.

Provided Mr Cottam remains on track to manage his innate tendencies, urges and proclivities then his risk of recidivism remains Low. He was able to see he needed a plan to ensure he remained offending-free. Towards that end if Mr Cottam:

•  remains in a positive relationship

•  obtain a referral from a GP to a mental health practitioner and in so doing,

•  gain assistance to address his mood and anxiety disorders as well as

•  address his sense of self, insecurities and feelings of inadequacy and

•  enhance his understanding of how and why he offended

then Mr Cottam's risk of reoffending is low.

The converse, of course, is true. If he fails to address the significant psychological and psycho-sexual influences within him then his risk of recidivism increases.^[3]

22. [22]
    It thus appears that, according to the actuarial instruments, the respondent was assessed as having a significant risk of sexually reoffending. Mr Walkley was of the opinion that that assessed risk was ameliorated by dynamic factors, including the insights and knowledge gained by the respondent from completion of a sex offenders treatment program, such that the risk was reduced from 23 per cent to about 10 per cent over the following seven years. The opinion of Mr Walkley that risk of sexual recidivism would remain low was, however, contingent upon the respondent remaining in a positive relationship, obtaining a referral from a GP to a mental health practitioner and, in so doing, gaining assistance to address his mood and anxiety disorders, as well as his sense of self, insecurities and feelings of inadequacy and enhancing his understanding of how and why he reoffended. Failure to address his significant psychological and psychosexual influences would lead to an increase in his risk of recidivism.
23. [23]
    The respondent has not placed any evidence before the Tribunal as to whether, in fact, he does remain in a positive relationship or whether, in fact, he has sought mental health treatment and benefited from such treatment in ways Mr Walkley thought necessary. In those circumstances, the Tribunal cannot place much weight on Mr Walkley’s assessment in March 2018 that the respondent’s risk of reoffending is low.
24. [24]
    On all the material and, in particular, upon a careful examination of the contents of the report of Mr Walkley, the respondent’s risk of reoffending may be more like that assessed according to the actuarial instruments. The likelihood of the relevant risk eventuating must be considered to be significant.
25. [25]
    Even if the likelihood of the risk eventuating could be described as low, the nature of the risk and severity of the consequences if it eventuated is such that the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.
26. [26]
    In those circumstances, the Tribunal should exercise the discretion to make a prohibition order pursuant to section 113(4) of the HO Act. Given the factors of the respondent’s psychological functioning contributing to his offending and based on his continuing risk of sexually reoffending and given the absence of evidence as to any treatment and/or prognosis since the assessment by Mr Walkley in March 2018, there is no basis for a finding that the risk presented by the respondent will have reduced to an acceptable level after the passage of a period of time. Accordingly, any prohibition should be permanent.
27. [27]
    There is no basis for concluding that imposition of restrictions pursuant to section 113(4)(b) would properly address the risk presented by the respondent. A prohibition from providing a stated health service or services, for example, disability care services, would not protect all vulnerable patients potentially at risk. In all circumstances I have concluded that a permanent prohibition on provision of any health service is the appropriate order.
28. [28]
    The Tribunal orders as follows:

1. 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.
2. Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.
3. Pursuant to section 73(2)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision on 7 October 2016 to issue an interim prohibition order.