Health Ombudsman v Vu[2021] QCAT 240

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint made about An Thien Vu (Respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (Applicant). The Applicant seeks that the Tribunal find that the Respondent has behaved in a way that constitutes professional misconduct and make consequent orders by way of sanction.

Background of Respondent

2. [2]
   The Respondent is aged 41 years and was aged 36 to 37 years at the time of the conduct the subject of the referral. Material before the Tribunal establishes that the Respondent was born in Vietnam and emigrated to Australia with his family whilst a child. He completed his primary and secondary education in Brisbane and subsequently graduated with a Bachelor of Physiotherapy degree from the University of Queensland in 2004. He was first registered as a physiotherapist on 7 April 2004. A letter from the Respondent’s then solicitors to the Office of the Health Ombudsman (OHO) dated 7 November 2016 states that the Respondent’s employment history “spans various organisations, including private hospitals, public hospitals, nursing homes, private practices and community health services in various health-related capacities”.
3. [3]
   The Respondent worked as a contract physiotherapist at Mitchell’s Physiotherapy in Greenslopes between 15 March 2015 and 7 July 2016. He was also contracted to work as a casual physiotherapist at the Princess Alexandra Hospital between 22 April 2008 and 9 August 2017, although it will be noted subsequently that he appears to have last worked as a physiotherapist at that hospital on or about 22 January 2017.
4. [4]
   The Respondent commenced post-graduate studies for a Master of Public Health degree in 2016 and was continuing those studies at least as late as 2017. Neither the Applicant nor the Tribunal is aware as to the progress of the Respondent’s studies since that time.
5. [5]
   Information obtained from the Australian Border Force indicates that the Respondent has remained overseas since leaving Australia on 2 October 2020. Neither the Applicant nor the Tribunal are aware of his current whereabouts. The Respondent has no prior disciplinary history.

Engagement of the Respondent in these proceedings

6. [6]
   The Respondent was initially represented by solicitors in the proceedings before the Tribunal and was so at the time of filing a response to the referral. His solicitors withdrew from the representation of the Respondent after that time and the Respondent then had some involvement in the proceedings as a self-represented litigant, including in the preparation and filing of a statement of agreed and disputed facts. The Respondent continued to have some email contact with the Applicant and the Tribunal but later ceased responding to any emails from the Applicant and any notices to appear at directions hearings from the Tribunal.
7. [7]
   A notice of this hearing was forwarded to the Respondent by way of an email address he has previously used to communicate with the Applicant and the Tribunal. I am satisfied that the Respondent was given notice as required by section 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and that it is appropriate to proceed to hear and determine the matter in his absence pursuant to section 93 of the QCAT Act.

The referral

8. [8]
   The referral alleges four charges. Charges 1, 2 and 3 allege boundary violations during the course of the Respondent’s physiotherapy treatment of a patient at Mitchell’s Physiotherapy on 13 May 2016, 29 June 2016 and 6 July 2016. Charge 4 alleges that between 4 October 2016 and 22 January 2017, the Respondent breached conditions imposed on his registration as a physiotherapist by providing physiotherapy services to male patients at the Princess Alexandra Hospital. Charge 5 alleges that on 14 October 2016, the Respondent provided false and misleading information to the Health Ombudsman. Charge 6 alleges that on 7 July 2017, the Respondent provided false and misleading information to the Health Ombudsman.
9. [9]
   In his response filed in the Tribunal, the Respondent denies the substance of charges 1, 2 and 3 but admits the substance of charges 4, 5 and 6. Likewise, in a statement of agreed and disputed facts filed jointly by the parties and signed by the Respondent, the Respondent denies the substance of charges 1, 2 and 3 but admits charges 4, 5 and 6.
10. [10]
    In an email to the Tribunal on 17 October 2018, the Respondent stated:

I cannot admit to false allegations. However, since I no longer have the financial means to defend myself, I will not contest the charges against me. I have previously submitted into evidence the breach of prohibition order placed upon me by the Office of the Health Ombudsman.

…I shall await the verdicts from the Tribunal in this matter.

11. [11]
    The Tribunal must determine whether the Respondent has engaged in the conduct alleged in each of the charges particularised in the referral and whether such conduct as the Tribunal finds established by the evidence should be characterised as professional misconduct or unprofessional conduct. Because of the potential consequences to the Respondent of adverse findings on such matters, the Tribunal can only find that the Respondent engaged in the alleged conduct and that such conduct should be characterised as professional misconduct or unprofessional conduct if satisfied of such matters to the standard enunciated by the High Court in Briginshaw v Briginshaw^[1].

Applicant’s evidence in support of charges 1, 2 and 3

12. [12]
    These charges relate to the Respondent’s treatment of a then 21 year old male patient during attendances at Mitchell’s Physiotherapy.
13. [13]
    It is not in dispute that, on 4 May 2016, the patient attended the clinic for physiotherapy treatment for a work injury to the patient’s foot and leg. The Respondent provided the initial consultation and treatment to the patient. It is not alleged that anything inappropriate took place during the initial consultation with the patient.
14. [14]
    The patient deposes that during a subsequent appointment for physiotherapy treatment, he still had his trackpants on when the Respondent brushed his genitals with his hand and apologised. The patient deposes that the Respondent then used his hand to move his genitals to the side to access the muscles on one side of his groin and then again used his hand to move the patient’s genitals to the side so that he could access the muscles on the other side of his groin. The Respondent’s conduct during this appointment is not the subject of a charge but the evidence of the patient provides context to his evidence of subsequent conduct by the Respondent, which is the subject of charges.
15. [15]
    Charge 1 relates to an appointment on 13 May 2016. The patient deposes that during that appointment, the Respondent again moved the patient’s genitals from one side to the other with his hand to access his groin, doing so about four or five times and apologising each time.
16. [16]
    Charge 2 relates to an appointment for physiotherapy treatment on 29 June 2016. The patient deposes that the Respondent asked him to remove his trackpants, which he did, but leaving his underwear on, and that the Respondent placed a towel over his genital area and tucked it into his underwear. The patient deposes that the Respondent moved the patient’s genitals from side to side using his hand so that he could access his groin on both sides and that whilst he did so, there was skin-to-skin contact between the Respondent’s hand and the patient’s genitals. The patient deposes that the Respondent also moved his genitals from side to side by touching them through the towel.
17. [17]
    Charge 3 relates to a subsequent appointment for physiotherapy treatment on 6 July 2016. The patient deposes that he and the Respondent were in a closed room that was small so that one could only just move around the bed. The Respondent asked him to remove his shirt and pants. The patient removed his shirt and pants but left his underwear on. The Respondent did not cover the patient with a towel. The patient was lying on his stomach whilst the Respondent was massaging his back and the Respondent asked the patient whether he had ever been overseas and the patient responded that he had been to Europe and Thailand. The Respondent asked whether he had ever had a massage over there and then whether he had ever had one with a “happy ending”. The Respondent enquired of the patient whether he would ever have a massage with a happy ending and made inappropriate comments as to the patient being “sexually active and a handsome boy”. The patient was on his back with the Respondent massaging his legs when the Respondent grabbed the patient’s genitals with his hand and moved them to one side and said words like “an uncircumcised penis retains more sensation” before grabbing the patient’s penis with his hands and starting to massage it and his testicles. The patient protested and the Respondent stopped massaging the patient’s genitalia and said words like “I just wanted to make sure you were having a good time” and “I’m being very naughty”.
18. [18]
    The patient deposes that the Respondent touched the patient’s genitals again and moved them to the side to massage his right leg and groin before asking the patient, “What is the biggest penis you have ever seen?” The patient deposes that the Respondent then moved the patient’s underpants aside, exposing his penis and moved his (the Respondent’s) head down towards his penis. The patient pushed the Respondent away and moved off the treatment table, refusing the Respondent’s request to lay back down on the table, dressed himself and then left.
19. [19]
    The patient deposes to feeling shocked, sitting in his car for about half an hour and thinking back to the previous appointments with the Respondent where there had been some touching of his genitals. Upon returning home, he spoke to his mother and told her what had happened.
20. [20]
    The Applicant has filed an affidavit of a woman who was employed as a receptionist at Mitchell’s Physiotherapy at the relevant time, in which the deponent provides evidence consistent with the terms of a statement provided to the OHO on 21 March 2017. The receptionist’s evidence includes her observation that upon conclusion of the physiotherapy session on 6 July 2016, the patient declined an offer to book another appointment and “seemed not normal” when she spoke to him.
21. [21]
    The receptionist deposes that within 30 minutes of the patient leaving the practice, she received a phone call from the patient’s mother reporting that the patient had told her that he was sexually assaulted by the Respondent. At that time, the Respondent was still at the practice and the receptionist asked the Respondent what area of the patient he was treating, and the Respondent stated something like he was treating the patient’s leg area and may have said upper leg. The Respondent stated to her that he had accidentally brushed the patient whilst he was reaching across him and thought that the Respondent said he had brushed the patient’s penis, that his underwear was on and he “accidentally bumped it”.
22. [22]
    The patient’s mother has affirmed an affidavit annexing a copy of her statement to the OHO dated 23 February 2017. She deposes that between about 8.05 pm and 8.10 pm, the patient told her that he had been molested, which he further details as follows:

    1. (a)
       His physiotherapist had been massaging his inner thigh up near his groin and kept grazing beside his penis as he was massaging his groin.
    2. (b)
       The physiotherapist put his hand down the side of the patient’s pants and brushed against his penis and then made a downward movement with his head towards his penis.
    3. (c)
       The physiotherapist said, “Oh, we are being naughty, aren’t we?”
    4. (d)
       Her son then got off the bed, got dressed and left the room.
    5. (e)
       Her son paid money for the session, did not say anything to the receptionist about what had happened and left the building.
23. [23]
    The patient’s mother deposes to ringing Mitchell’s Physiotherapy immediately and speaking to the receptionist.
24. [24]
    The Applicant has filed an affidavit affirmed by a close friend of the patient which annexes the witness’s statement to the OHO dated 4 May 2017. The witness deposes to an occasion in winter of 2016 during which the patient disclosed to him as follows:

    1. (a)
       He had been going to see a physiotherapist named An to receive treatment for an injury.
    2. (b)
       During the initial treatment, An slightly touched his genitals slightly through his pants. The patients thought that his genitals might have been in the way and that is why An moved them. At the time, he considered that this was okay.
    3. (c)
       On the second treatment session, An lifted up the patient’s underwear and moved his genitals. An then asked the patient about when he went to Thailand and if he had any special massages over there.
    4. (d)
       The patient told An that he hadn’t received any special massages as he was 13 at the time and was with his family.
    5. (e)
       On the last treatment session, An kept asking the patient questions revolving around sexual stuff and then tried to touch the patient’s genitals with his mouth.
25. [25]
    The witness deposes that he believes the patient told him that the last treatment session was on the Wednesday, the day before their conversation. He deposes that the patient seemed quieter and quite sad at work that day and did not seem to be his normal self and that, when he told him about the incidents, he appeared shaken and in shock.
26. [26]
    The patient sought psychological treatment as a consequence of his alleged ill treatment by the Respondent. The Applicant has filed an affidavit affirmed by that psychologist, in which the psychologist affirms that the patient attended her for treatment on 14 July 2016. She deposes as follows:

2. 6.Over three sessions with [the patient], he told me the following:

1. (a)
    Around three weeks prior, around mid – late June, he had suffered a workplace injury requiring physiotherapy. Over the course of several weeks, he attended physiotherapy sessions at Mitchell’s Physiotherapy with An Vu being his treating physio;

2. (b)
    During that time Mr Vu was quite ‘touchy feely’, often brushing his hand past his penis. This did not concern him at first as he put it down to being part of the job, as the injury was around that area;

3. (c)
    As the sessions continued Mr Vu became more ‘touchy feely’, occasionally moving his genitals aside. He again believed it was part of the job, as the injury was around that area;

4. (d)
    After a few weeks of treatment Mr Vu’s behaviour escalated significantly during one particular session. During that session Mr Vu began steering the conversation towards travel, Thailand, massages and ‘happy endings’;

5. (e)
    Mr Vu then began massaging [the patient’s] genitals. At that point he described ‘freezing up’ and going into a stunned-like state, being in complete shock and disbelief about what was happening;

6. (f)
    Mr Vu then attempted to begin oral sex on him. He then sat up and immediately pushed Mr Vu away and said he had to leave;

7. (g)
    Mr Vu encouraged him to stay, but he said no and left;

8. (h)
    He later reported the incident to Mitchell’s Physiotherapy and they offered to pay for psychological services for him;

1. (i)
    He has constant daytime flashbacks to the event, and has trouble concentrating at work. He has increased self-doubt and insecurities, and worried about potential ridicule, loss of pride and fear of feelings of emasculation; and

10. (j)
     He has found it very difficult to talk about the event with others and has only told his mother, girlfriend and two close mates.

2. 7. I considered that [the patient’s] presenting problem was acute stress response to recent distressing event/sexual assault by an allied health professional.
3. 8. My last session with [the patient] was on 11 August 2016.

27. [27]
    The affidavit of the psychologist annexes records from her treatment sessions. They include detailed notes of the initial session on 14 July 2016, including a detailed account from the patient as to the events.

Presenting problem:

MSE: On time for appt. Smartly dressed tall young male with some facial hair, who appeared slightly older than stated age of 21. Was cooperative, open and friendly and made good eye contact. Speech was of normal tone and pace, and expressive. Reported mood slightly anxious. Affect reactive and congruent with mood. Thoughts well organised. Nil evidence of perceptual disturbance or formal thought disorder. Appeared oriented to TPP and appeared to be a reliable historian. Good insight into situation and good judgement (open to seeking help and processing the situation). Nil suicidal ideation.

Presenting problem:

• – Acute stress response to recent distressing event/sexual assault by an allied health professional

Event (according to [the patient’s] reports):

• – [The patient] recently experienced an injury whilst at work, and had to attend regular physiotherapy sessions to assist in his rehabilitation
• – During sessions, the male physiotherapist would lightly 'brush past' [the patient's] penis whilst massaging/manipulating various areas, [the patient] reportedly did not think much of this - assumed it was a normal expectation of physiotherapy work that things like that might occur.
• – As sessions continued, [the patient] described the physio’s behaviour escalating, e.g. he would physically touch [the patient’s] penis to move it aside to be able to work on a particular area. [the patient] reported feeling unsure what this meant, but eventually explaining it to himself as a reasonable part of physiotherapy work. He reported reminding himself "this guy is a doctor, he's a professional".
• – In the most recent session (last Wednesday 6th July), [the patient] reported that the physio's behaviour escalated again. This time, [the patient] reported that at some point the physio began steering the conversation towards [the patient's] sexual activity and getting 'happy endings' in Thailand. [The patient] reported the physio then started looking at his penis, asking how 'big' [the patient] was, and began massaging [the patient’s] penis. [The patient] reported 'freezing up' and going somewhat into a state of shock at this stage. He remembered thinking "is this actually happening", and having no idea what to do. [The patient] reported that the physio then came towards him very quickly at (sic) attempted to fellate him. [The patient] reported that he immediately pushed the physio away and said that he had to leave. [The patient] reported that the physio looked somewhat shocked, as though he was surprised that [the patient] was rejecting his advances, and suggested that [the patient] stay. [The patient] reported that he repeated to the physio that no, he was leaving, and then left.
• – [The patient] very promptly told his mum and girlfriend about the incident. He then decided to contact the physiotherapy practice owner, who reportedly dismissed the physio and encouraged [the patient] to seek psychological therapy, which the practice would pay for.

Impact of event:

• – [The patient] reported constant daytime flashbacks to the event, i.e, it 'pops up’ in his mind all day when at work. Reported nil nightmares at present.
• – [The patient] reported that he tries to push the event from his mind when thoughts of it come up, with little success. He also reported trying to avoid other reminders of it, eg talking about it with others, thinking about it. He has found it very difficult to talk about the event with others and has only told his mum, girlfriend and two close mates.
• – Due to the flashback and preoccupation with thinking about the event, [the patient] reported significant difficulty focusing and concentrating at work [redacted]. He reported feeling preoccupied when [redacted] at one point, and realised that he almost overlooked something that could have caused a safety issue.
• – [The patient] reported feeling exhausted by the end of each day due to his constant preoccupation with the event and trying not to think about it.
• – [The patient] reported that he has been much more irritable and ‘snappy’ at others than usual.
• – [The patient] reported feeling numb, and that the whole situation feels a bit unreal. He reported feeling that the event hadn't really sunken in yet.
• – [The patient] reported frequent negative ruminations since the event, including increased self-­doubt and insecurities. He also reported worry about potential ridicule, loss of pride and fear of feelings of emasculation.

History:

Nil personal mental health history. Has never been to see a psychologist before.

Reported functioning prior to incident was good:

• – took great pride in his work
• – had a strong relationship with his girlfriend of 7 years
• – good strong social network (small group of close friends, larger group of 'acquaintances’).

Family History:

Nil immediate family mental health history

Good relationships with his parents, particularly his mother

Formulation:

Score on POL (PTSD Checklist) - 50 (over threshold). Score on IES (Impact of events scale) 53 (over threshold; Intrusive subscale - 23, Avoidance subscale - 30) Symptoms consistent with Acute Stress Disorder.

Predisposing: N/A

Precipitating: Distressing event (see Presenting Problem)

Perpetuating:

• – Avoidance of thoughts and feelings about the event
• – uncertainty about how to cope/deal with the symptoms and current situation

Protective: Previously high functioning. Willing to accept help and can see the benefits of doing so.

Plan:

• – help [the patient] cope with the symptoms (eg discouraging avoidance, encouraging relaxation/breathing/anxiety mgmt strategies, challenging unhelpful thoughts about the situation, helping him process and make sense of the event)
• – 'watch and wait’ and monitor symptoms.

28. [28]
    On 30 July 2016, the psychologist made a mandatory notification via email to the OHO as to the alleged conduct of the Respondent. The affidavit of the psychologist annexes a statement provided to the OHO on 26 May 2017.
29. [29]
    The close friend of the patient further deposes that, during the weekend following the patient’s initial disclosure to his friend, the patient, along with the deponent and friends, went on a shooting trip in country Queensland. He deposes that, whilst at a camping area, the patient said he had something serious to tell all of them and told them all what he had already disclosed to the deponent about the incidents with An. He deposes that the patient also said:

    1. (a)
       He had to tell everyone as they were in a high-risk area away from civilisation and had firearms.
    2. (b)
       He had to tell everyone because of the state of his mind due to the incidents with An.
    3. (c)
       He had been advised to see a psychologist due to the incidents.

Respondent’s statements

30. [30]
    The Respondent has not filed any affidavit evidence in the proceedings but has made statements denying the conduct the subject of charges 1, 2 and 3.
31. [31]
    In an email on 7 July 2016 to his employer, the Respondent stated as follows:

Thank you for taking the time to hear my side of the story and for bringing this matter to a close.

As I reported to you, I had no intentions of doing all the things that [the patient’s] mother accused me of.

I have treated [the patient] for several weeks now. Initially for his foot which was injured in a work accident when a truck rolled over it. He then booked in with Angela. Then back to me.

The last few weeks I have been focusing on his back and legs as he has complained of long standing back issues. Which has been aggravated in a recent ski trip to Thredbo.

[The patient] knew I was going to Thailand because I told him I would be away next week. He proceeded to tell me stories of when he went to Thailand with his mother, step sister and his mother’s partner, when he was 14. (Hence why I knew his mother was divorced when you mentioned to me that he might have a homophobic father)

One of his story (sic) was about an incident in a massage parlour which sounds very similar to what his mother has told you.

There was an age old joke of a happy-ending thrown around in that conversation as well.

He also told me other stories of all the nightclubs he went to when he was there and that they were in his words: "eyes opening!!!"...

I knew [the patient] has a girlfriend because he told me they have been together for 7years (sic).

The incidence (sic) concerning me was when I leaned over the bed across his body, to get some more massage cream, and accidentally grazed his penis. He was in his underwear. I did stoop a bit too low in doing so which may appear like I'm bending down towards his crotch. I apologized and he told me not to worry about it. He said: "don't worry about it, mate!"...

I was very embarrassed about the incident. He did not seem at all angry and [the receptionist] said so as well when he left.

I was actually a bit scared as I am much smaller than he is, I would not dare to be so bold as stroking his penis like his mother alleged. I understand professional boundaries.

I want to offer my sincere apology to you for wasting your time and putting you through this. I would totally understand if you are upset with me.

32. [32]
    The Respondent’s then solicitors wrote to the OHO on 7 November 2016, in response to correspondence from the OHO dated 4 October 2016 detailing the findings and evidence relied upon by the OHO to take immediate registration action against the Respondent. I have considered the contents of the correspondence from the OHO in considering the letter from the Respondent’s solicitor as to the particular matters that are admitted and denied in the solicitor’s letter dated 7 November 2016. It is unnecessary to detail the contents of such correspondence other than to note as follows.
33. [33]
    The Respondent contended that, during treatment to the patient’s groin area to address his leg muscle injury, he accidentally brushed the complainant’s genitals with his hand and he instantly apologised, to which the complainant responded, “Don’t worry about it, mate!”
34. [34]
    The Respondent contended that he did not and had not had any direct hand and genital contact with the complainant during treatment sessions or otherwise but rather moved around the subject area to provide treatment to the leg via the groin area as per standard practice. The Respondent denied repeatedly moving the complainant’s genitals and apologising. The Respondent denied ever placing a towel inside the complainant’s underwear. The Respondent contended that a towel was always used when required.
35. [35]
    The Respondent contended that a conversation occurred between him and the patient regarding overseas holidays as the Respondent was planning to travel to Thailand on 8 July 2016 for a holiday. The Respondent contended that the patient informed him at that time that he had previously been to Thailand when he was 14 years of age with his family, and he went to certain clubs and places during the trip and had “some eye-opening experiences”. The Respondent denied the allegations of referring to, or making any suggestion of, “happy endings”, “sexually active” or “handsome boy”.
36. [36]
    The Respondent contended that the patient was “touching himself by massaging his genital area with his hand on the outside of the towel” whilst the patient was receiving leg treatment, which made the Respondent feel very uncomfortable. The Respondent “vehemently denied” the allegations of exposing the patient’s genitalia and moving his head towards his penis.
37. [37]
    The Respondent’s solicitors submitted that there was inconsistencies in the account of the patient as to the timing of the appointment, the patient’s contention that he sat in his car for about half an hour before returning home, and the timing of the patient’s mother’s call to the practice, which affected the credibility of the patient’s complaint. The Respondent’s solicitors pointed to the lack of any earlier complaint by the patient, notwithstanding his allegations of inappropriate behaviour during earlier treatment sessions and to “an obvious size and weight difference favouring the complainant versus our client”.
38. [38]
    The Respondent was interviewed by OHO investigators on 7 July 2017. I have considered all of the contents of that interview and do not propose to detail them apart from noting the Respondent stated that he had accidentally brushed against the patient’s genitals once and did apologise to the patient and the patient said he was okay, “It’s all right, mate.” The Respondent stated that he thought that was what had upset the patient and caused him to make a complaint. The Respondent stated that occurred during an earlier session of treatment and that nothing of note occurred during the last session of treatment.
39. [39]
    With respect to the alleged conversation about overseas massages and happy endings, the Respondent stated that he had told the patient he was going to Thailand and that it was the patient who had made a reference to a “happy ending” and then laughed.
40. [40]
    The Respondent stated that he would never dare doing what was alleged because the patient was so much bigger than him and he would fear being beaten up. The Respondent claims that he was scared that the patient would be upset and beat him up after he accidentally brushed his genitalia.
41. [41]
    When questioned further as to how such touching had occurred, the Respondent said that the patient was lying on his back with a towel over him whilst the Respondent lent over him to get some cream to work on his leg and the bottle of cream started falling and the Respondent tried to catch it and, in so doing, grazed the patient’s penis.
42. [42]
    He stated that he felt uncomfortable with the extent to which the patient was adjusting his own genitalia. The Respondent denied having any conversation or making any comments to the patient about uncircumcised penises.
43. [43]
    The Respondent denied offering his resignation to his employer despite the email from his employer to the Respondent on 9 July 2016 stating, “Your offer of resignation on Thursday 7th July 2016 has been accepted effective Thursday 7th July 2016”.
44. [44]
    There was further extensive questioning of the Respondent as to the circumstances in which the Respondent claimed he had accidentally grazed the genitalia of the patient.
45. [45]
    The Respondent’s then solicitors, by letter dated 2 February 2018, forwarded to the OHO a statutory declaration of the Respondent taken and declared on 2 February 2018 in which the Respondent stated that the allegations basing the complaint of the patient were “vehemently denied”.

Findings regarding charges 1, 2 and 3

46. [46]
    The evidence of the patient is unchallenged by cross-examination.
47. [47]
    The patient gives a detailed account of increasing inappropriate conduct on the part of the Respondent, culminating in an unmistakeable verbal and physical sexual approach during the final physiotherapy session. The detail and contents of the patient’s evidence is inconsistent with a fabricated account. It paints the picture of conduct on the part of the Respondent in the nature of grooming, with the Respondent progressively testing or pushing the boundaries of what he might be able to get away with or perhaps investigating the willingness of the patient to comply or engage in sexual contact.
48. [48]
    The conduct of the Respondent clearly provoked distress on the part of the patient. That is confirmed by his demeanour, as observed immediately afterwards by the receptionist of the practice and soon afterwards by the patient’s mother. The terms of the patient’s complaints to his mother, close friend and treating psychologist are entirely consistent with the evidence of the patient as to what in fact occurred. I note in particular the detailed account given to his treating psychologist during the initial session of psychological treatment.
49. [49]
    It cannot be concluded other than that the patient was genuinely distressed by what occurred between him and the Respondent. That is confirmed further by the nature of his disclosure to his friends and his own concern for his mental health and safety during the course of the camping and shooting trip which occurred shortly afterwards. Such a reaction on the part of the patient is entirely consistent with the account given by the patient as to the conduct of the Respondent. It is quite inconsistent with events having occurred as described by the Respondent in his various versions of events.
50. [50]
    The Respondent did not impress as a reliable historian during the course of his interview with OHO investigators.
51. [51]
    I have taken into account those submissions made on the Respondent’s behalf by his then solicitors and their contentions regarding timing of events following the final physiotherapy session. Such relatively minor discrepancies in witnesses’ accounts of timing are completely explicable in the circumstances. They do not, as submitted on behalf of the Respondent, detract from the credibility of the patient’s account.
52. [52]
    I consider the evidence led by the Applicant from the patient and other witnesses to be cogent and compelling despite the denials by the Respondent.
53. [53]
    Bearing in mind the onus of proof on the Applicant and the degree of satisfaction required to make such findings, the Tribunal is quite satisfied that the Applicant has proved the conduct subject of charges 1, 2 and 3. The Tribunal finds those charges proved.

Regulatory action and charges 4, 5 and 6

54. [54]
    On 30 July 2016, the OHO received the notification from the patient’s treating psychologist in relation to the Respondent’s conduct towards the patient. On 4 October 2016, the Health Ombudsman took immediate action under part 7 of the HO Act by way of the following:

    1. (a)
       imposing conditions on the respondent’s registration pursuant to section 58 of the HO Act; and
    2. (b)
       issuing the Respondent with an interim prohibition order imposing restrictions pursuant to section 68 of the HO Act.
55. [55]
    The conditions and restrictions took effect on 5 October 2016.
56. [56]
    Charge 4 relates to a breach of the conditions imposed on the Respondent’s registration on 4 October 2016:

    1. The practitioner must only assess, consult, examine or treat female patients.

…

6. Within two (2) business days of the commencement of these conditions and/or the commencement of any new employment, the practitioner must notify all current and/or future employers, co-owners, co-directors, contractors of service, and/or facility owners/operators of medical practices and/or hospitals where the practitioner provides a health service, as to the existence of the conditions on the practitioner’s registration and provide them with a copy of this schedule of conditions.
7. Within five (5) business days of the commencement of these conditions and/or the recommencement of any new employment, the practitioner must complete and submit the enclosed Request for Approval of Employment form to advise the Office of the Health Ombudsman of the names and contact details of all employers, co-owners, co-directors, contractors of service, and/or facility owners/operators of medical practices and/or hospitals where the practitioner provides a health service.
8. The practitioner must within five (5) business days of the commencement of the conditions and/or the commencement of any new employment, provide to the Office of the Health Ombudsman a completed Employer acknowledgment form from all current and/or future employers, where the practitioner provides a health service, certifying that they are aware of the conditions imposed on the practitioner’s registration and have been provided with a copy of this Schedule of Conditions.

57. [57]
    At the time the conditions were imposed, the Respondent was employed as a casual physiotherapist at the Princess Alexandra Hospital. The Respondent failed to notify the hospital of the conditions on his registration within two business days or at all. The Respondent failed to complete and submit to the OHO a request for approval of employment form in relation to his employment with the Princess Alexandra Hospital within five business days or at all. The Respondent failed to provide to the OHO a completed employer acknowledgement form in relation to his employer, the Princess Alexandra Hospital, within five business days or at all. Between 5 October 2016 and 22 January 2017, the Respondent provided physiotherapy services on at least 80 occasions to male patients at the Princess Alexandra Hospital.
58. [58]
    Charge 5 alleges provision of false and misleading information to the Health Ombudsman. Pursuant to condition 7 on the Respondent’s registration, within five business days of the commencement of the conditions, the Respondent was required to complete and submit a request for approval of employment form to the OHO. On 14 October 2016, the Respondent sent an email to the OHO in which he stated:

I am complying with your reqest (sic) to provide details regarding my current employment. My last employer was Kelly Mitchell of Mitchell’s physiotherapy. However, I have not worked at Mitchell’s physiotherapy since 8 July 2016. I am currently pursuing further studies. Please find attached my student card as evidence. As such, I currently have no contracts with any other employers. I am not planning on taking any employment until my university courses are completed.

59. [59]
    Charge 6 relates to providing false and misleading information to the Health Ombudsman during the course of his interview on 7 July 2017. The Respondent was warned at the commencement of the interview that section 264 of the HO Act provides that a person must not give information that the person knows is false or misleading in a material particular to an authorised person and the Respondent stated that he understood that. During the course of the interview, the Respondent was asked whether he was currently employed, and he stated that he was not currently employed and had not been employed in the health industry since Mitchell’s Physiotherapy.
60. [60]
    The statements made by the Respondent, the subject of charges 5 and 6, were quite false, as he had continued, since ceasing employment with Mitchell’s Physiotherapy, to provide physiotherapy services in the course of casual employment by the Princess Alexandra Hospital.
61. [61]
    On 28 July 2017, the Princess Alexandra Hospital became aware of the conditions on the Respondent’s registration. On 1 August 2017, the hospital made a complaint to the OHO in relation to the Respondent’s breach of conditions on his registration while working at the hospital. On 9 August 2017, the PA Hospital decided to remove the Respondent as a casual physiotherapist.
62. [62]
    In his statutory declaration taken and declared on 2 February 2018, the Respondent stated:

6. 6.I admit that I breached conditions placed on my registration by assessing, consulting, examining and treating male patients at Princess Alexandra Hospital between 04 October 2016 and 21 January 2017.
7. 7.I failed to notify Princess Alexandra Hospital of the conditions placed on my registration.
8. 8.As a consequence of failing to disclose my employment at Princess Alexandra Hospital between 04 October 2016 and 21 January 2017 during my interview on 7 July 2017 I admit that I gave false or misleading information to an authorised person during the section 228 interview conducted on 07 July 2017 with Investigations Officer Grant Kempster, in breach of section 264 of the Health Ombudsman Act 2013, in stating that I had not been employed in the health industry since ceasing work with Mitchell’s Physiotherapy.
9. 9.I am sincerely remorseful for failing to disclose my employment to the OHO and the restrictions imposed to the Princess Alexandra Hospital.
10. 10.The allegations sought against me by the complainant have resulted in myself losing my casual employment with Mitchells (sic) Physiotherapy.
11. 11.My direct lack of judgment for failing to disclose my employment to the OHO and the restrictions imposed to the Princess Alexandra Hospital is solely my own fault, but is in part attributable to the stress and injurious nature of the investigation into the complaint I have endured over the past twelve months (12) along with the restrictions imposed on my ability to practice the profession which I am passionate about.
12. 12.I consider myself an honest, reliable and educated member of society and I do not pose any harm or threat to the public in my capacity as a physiotherapist or in any other capacity, however I was aware of the restrictions imposed at the material time and concede being in direct breach of same for the period of 04 October 2016 and (sic) 21 January 2017.
13. 13. I am aware that if I intend to commence working or practising as a registered physiotherapist or an unregistered health service provider I am required to notify the OHO immediately and comply with the employment-related conditions on my registration and the employment related restrictions as outlined in my interim prohibition order.
14. 14. I am aware that as a consequence of my failure to disclose being in breach of section 264 of the Health Ombudsman Act 2013 that regardless of the outcome of the contesting by myself of the Complaint given my strong denials that my conduct addressed herein will limit my future prospects of employment in my chosen industry of Health. 
15. 15. I am more than amenable to continue to cooperate with the OHO in returning to the Health Industry in a professional capacity.
16. 16. I have not practised as a health service practitioner in any capacity, either paid or unpaid, since the date of my last provided statutory declaration dated 27 January 2017, until the date of this Declaration.

63. [63]
    As earlier mentioned, the Respondent admitted the substance of charges 4, 5 and 6 in his response filed in these proceedings.
64. [64]
    On 12 March 2018, the Health Ombudsman made the following decisions:

    1. (a)
       pursuant to section 68A(1) and (2) of the HO Act, to vary the interim prohibition order to provide that the Respondent was prohibited from providing any health service, paid or otherwise, in a clinical or non-clinical capacity; and
    2. (b)
       pursuant to section 65 of the HO Act, to remove the conditions on the Respondent’s registration as the Respondent no longer held registration as a physiotherapist.

Characterisation of conduct

65. [65]
    The conduct the subject of charges 1, 2 and 3 is an egregious example of boundary violations in the course of the practice of physiotherapy. The conduct was calculated and protracted in the nature of grooming, pushing the professional boundaries and testing the patient’s willingness to submit to such behaviour. It was cunning and predatory behaviour. It had a serious adverse effect upon the patient. It constitutes very serious professional misconduct.
66. [66]
    Charge 4 involved a protracted dishonest and deliberate contravention of conditions placed upon the Respondent’s registration to protect public health and safety. It is a very serious example of professional misconduct.
67. [67]
    In relation to charges 5 and 6 and the Respondent’s deception and misleading of the OHO, it is relevant to note the observations of the Honourable J.B. Thomas AM QC in Psychology Board of Australia v Wakelin^[2]:

The Respondent’s dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character and the sexual transgression. The character revealed by a practitioner’s actions is obviously a matter with which any disciplinary body must be concerned. She was prepared to misrepresent the truth to the professional body, and made unsuccessful attempts to cover up her actions.

68. [68]
    It was further noted in Psychology Board of Australia v Wakelin^[3] that:

The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the responses of its practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty, and that sanctions for such conduct may well exceed that which will be imposed in this particular case.

69. [69]
    Those comments regarding a practitioner’s dealings with the professional board are no less apt to a practitioner’s obligations of honesty in dealing with the OHO in investigation of their conduct and regulation of their registration.
70. [70]
    The conduct of the Respondent with respect to each of the charges would be sufficient to meet the definition of professional misconduct. The combination of such misconduct is undoubtedly caught by each limb of the definition of “professional misconduct” in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
71. [71]
    Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the Respondent has behaved in a way that constitutes professional misconduct.

Sanction

72. [72]
    The health and safety of the public is paramount and the main consideration for the Tribunal in determining orders for sanction.^[4] The purpose of disciplinary hearings like 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.^[5] The imposition of a disciplinary sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practice 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 practitioners 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 practice so as to ensure that the public is protected.
73. [73]
    The Applicant submits that the Respondent should be reprimanded. His disgraceful behaviour obviously deserves denunciation by the Tribunal.
74. [74]
    Pursuant to section 107(3)(a) of the HO Act, the Respondent is reprimanded.
75. [75]
    The Respondent had not sought to renew his registration upon it lapsing in November 2017 and has remained unregistered since the registration lapsed as of 2 January 2018.
76. [76]
    The Applicant submits that the Tribunal should order that the Respondent be disqualified from applying for re-registration as a registered health practitioner for a period of two to three years.
77. [77]
    The Respondent has shown no remorse and no evidence of insight into the wrongness of his behaviour in relation to charges 1, 2 and 3. Despite conditions requiring he undertake education imposed by way of the immediate registration action on 5 October 2016, there is no evidence to suggest that the Respondent has undertaken such education or taken any other steps which might ameliorate concerns as to a repetition of the behaviour the subject of charges 1, 2 and 3.
78. [78]
    The only mitigating factors of any consequence are the Respondent’s lack of any disciplinary history, his expressions of remorse regarding his conduct the subject of charges 4, 5 and 6 (which must be viewed with some degree of scepticism), and his limited cooperation in the conduct of proceedings before the Tribunal by way of admissions regarding charges 4, 5 and 6.
79. [79]
    The extent and nature of the boundary violations by the Respondent constituting charges 1, 2 and 3, his subsequent flagrant disregard of conditions on his registration constituting charge 4, and his dishonesty constituting charges 5 and 6 tend to suggest that the character of the Respondent may be so indelibly marked by that behaviour that he may never be properly considered a fit and proper person to hold registration as a health practitioner. That will ultimately be a matter for the Physiotherapy Board of Australia to consider if he does ever apply for re-registration.
80. [80]
    Even taking into account the prior period of preclusion from practice of about three and a-half years since the lapse of the Respondent’s registration, the seriousness of his professional misconduct may well have been such as to justify a period of disqualification from applying for re-registration even in excess of the range submitted for by the Applicant. Nevertheless, the range submitted for by the Applicant is clearly within an appropriate range and considerations of procedural fairness militate against the Tribunal imposing a more severe sanction in circumstances where the Respondent has not appeared at the hearing but has been served with the submissions of the Applicant contending for such orders.
81. [81]
    Taking all matters into account, including the prior period of preclusion, the Tribunal determines that no less than the top of the range contended for by the Applicant is necessary to meet the protective purposes of sanction.
82. [82]
    Pursuant to section 107(4)(a) of the HO Act, the Respondent is disqualified from applying for re-registration as a registered health practitioner for a period of three years.
83. [83]
    The Applicant also seeks an order, pursuant to section 107(4)(b)(i) of the HO Act, prohibiting the Respondent from providing any health service until such a time as the Respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another state or territory of Australia.
84. [84]
    Given the conduct the subject of charges 1, 2 and 3, the protective purposes of sanction do require that the Respondent be prohibited from providing health services such as massage therapy as an unregistered health practitioner at least until such time as he might satisfy the Physiotherapy Board of Australia that he is a fit and proper person to be registered as a physiotherapist.
85. [85]
    Given such an order would not be 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, such a prohibition should not be limited by gender.
86. [86]
    What raises concern, though, as to the breadth of the order sought by the Applicant can be demonstrated by consideration of the definition of “health service” in section 7 of the HO Act, and in particular the terms of subsection (4)(a):

3. (4)
    Also, without limiting subsection (1), a health service includes—

1. (a)
    a service dealing with public health, including a program or activity for—

 (i) the prevention and control of disease or sickness; or

 (ii) the prevention of injury; or

 (iii) the protection and promotion of health; and

 Example of health service mentioned in paragraph (a)—

  A cancer screening program

87. [87]
    As noted earlier in these reasons, there is evidence that the Respondent has undertaken studies towards a Masters of Public Health degree. It is not known to the Tribunal whether he has completed, or intends to complete, such studies or will ultimately seek any employment in the field of public health. An order in the terms sought by the Applicant would, given the definition of “health service” in section 7 of the HO Act, prevent him at some future time in seeking to obtain employment as an unregistered health practitioner in a public health position involving no patient contact and in which the Respondent might not present any risk to the health and safety of the public. Such a prohibition would go beyond what is required to meet the protective purposes of sanction and might result in an unduly punitive sanction.
88. [88]
    For those reasons, the permanent prohibition order will be in terms that prohibit the Respondent from providing health services as an unregistered health practitioner involving patient contact unless and until such time as he obtains registration as a registered health practitioner. The terms of the order will not prohibit the Respondent from providing the type of health service encompassed by section 7(4)(a) of the HO Act where such health service does not involve any direct patient contact.
89. [89]
    Pursuant to section 107(4)(b)(i) of the HO Act, the Respondent is prohibited from providing any health service involving direct contact with any patient or client until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another state or territory of Australia.
90. [90]
    Given the making of such an order, it is necessary for the Tribunal to make an order with respect to the existing interim prohibition order. Pursuant to section 73(2)(a)(ii) of the HO Act, the Tribunal sets aside the decision of the Health Ombudsman on 4 October 2016 to issue an interim prohibition order and the decision of the Health Ombudsman on 12 March 2018 to vary the interim prohibition order.
91. [91]
    The non-publication order made by the Deputy President on 30 April 2018 will continue to prohibit the publication of anything that might tend to identify the patient or any family member of the patient.