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- Unreported Judgment
Health Ombudsman v Sandhu QCAT 292
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Sandhu  QCAT 292
director of proceedings on behalf of the health ombudsman
rajeep singH sandhu
Occupational regulation matters
7 September 2021
6 September 2021
Judicial Member D J McGill SC
Dr J Cavanagh
Dr G Kelly,
Ms J Stuckey
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – CONVICTION OF OFFENCE – possession of child exploitation material – small amount – no evidence of remorse or insight – practitioner did not engage with proceeding – no longer registered – sanction.
Health Ombudsman Act 2013 s 103(1)(a), s 104
Nursing and Midwifery Board of Australia v Buckley  QCAT 392
Health Ombudsman v Mak  QCAT 24
Health Ombudsman v Creagh-Scott  QCAT 69
Nursing and Midwifery Board of Australia v Hindley  VR 22
Nursing and Midwifery Board of Australia v Brearley  QCAT 323
Mr M Price of the Office of the Health Ombudsman
REASONS FOR DECISION
- This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104. Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Dr J Cavanagh, Dr G Kelly and Ms J Stuckey in accordance with the Act.
- The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, or in the alternative unprofessional conduct, in that he has been convicted of one count of possessing child exploitation material contrary to the Criminal Code, s 228D. The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent, who is currently in immigration detention, has not engaged with the disciplinary process, has not filed a response to the referral, and did not respond to an invitation to attend the hearing by telephone or videolink. There is no material before the Tribunal from the respondent.
- From the material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows. The respondent was born in June 1978, and qualified as a medical practitioner in India. He later moved to the United Kingdom where he qualified as a psychiatrist. He came to Australia in August 2017, and was registered provisionally as a medical practitioner and a psychiatrist in that month. Just prior to the relevant time he was working at the hospital in a provincial centre as a consultant psychiatrist, but resigned from that position in September 2018.
- In November 2018 the respondent attended a police station and voluntarily admitted to possession of child exploitation material. An examination of his laptop computer with his cooperation revealed thirteen images, two of which showed some form of sexual activity between a pre-pubescent child and an adult. The respondent was arrested and charged in March 2019. On 2 August 2019 the applicant took immediate registration action, and suspended the registration of the respondent. In correspondence before that action was taken, the respondent denied having committed the offence, and claimed that there was never any child exploitation material on any of his devices. Subsequently the respondent’s visa was cancelled, and he was taken into immigration detention in late 2019.
- Despite his initial admissions to police, the matter went to trial in the District Court in July 2020. At the trial the respondent just put the prosecution to proof, and did not cross-examine witnesses or address the jury. He offered no innocent explanation for what had occurred and what had been found, nor did he otherwise challenge the prosecution case. He was convicted of the charge on 6 July, and was sentenced to imprisonment for twelve months, suspended immediately for an operational period of two years.
- The sentencing judge proceeded on the basis that the respondent would be deported. That has not yet occurred and he remains in detention, but presumably in due course he will be deported. In December 2020 the immediate registration action was revoked, but the respondent did not renew his registration, and he has been unregistered since 11 March 2021. It appears however that he has not worked as a medical practitioner since September 2018, some three years. Earlier this year, he was removed from the register in the United Kingdom as a result of the conviction.
- The respondent attended a health assessment by a psychiatrist nominated by AHPRA, and a report was provided dated 29 May 2019. The respondent was said to have limited symptoms consistent with a mild and resolving adjustment disorder with anxiety. After being shown further material, the psychiatrist in a report of 30 July 2019 suggested a differential diagnosis between September and November 2018 of Major Depressive Disorder with Psychotic Features. This suggests that to some extent the respondent had mental health difficulties at the time of the offending resulting in the conviction.
Characterisation of conduct
- The applicant submitted that the conduct reflected in the conviction amounted to professional misconduct. The conviction is within the extended definition of unprofessional conduct in the National Law, and because of its nature, involving the sexual exploitation of young children, it was an example of such conduct that fell substantially below the conduct expected of a registered medical practitioner of an equivalent level or training and experience. It is unnecessary to consider whether it otherwise satisfied the definition. Such a conclusion is consistent with the decisions of the Tribunal in Nursing and Midwifery Board of Australia v Buckley  QCAT 392, Health Ombudsman v Mak  QCAT 24 and Health Ombudsman v Creagh-Scott  QCAT 69. The relevant conduct constituted professional misconduct.
- In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant.  What matters is the fitness to practice of the respondent at the time of the hearing.
- The respondent no longer has registration so it is unnecessary to consider whether his registration should be cancelled or suspended. The applicant seeks that the respondent be reprimanded, and that is appropriate. The applicant also seeks that the respondent be disqualified from applying for registration as a health practitioner for a period of three to four years, and be prohibited from providing any health service until he again obtains registration as a medical practitioner.
- The applicant relied on three decisions of Tribunals in support of the proposed sanction. In Health Ombudsman v Creagh-Scott  QCAT 69 the practitioner, a registered nurse, was convicted on a plea of guilty of offences of possession of child exploitation material, accessing child pornography and distributing child pornography. His registration was suspended, and later surrendered. He cooperated with the investigation and the proceeding, and there was a joint submission as to sanction. It was accepted that he had shown insight and remorse, and that he had been suffering from significant mental health problems at the time of the offending. Treatment for those conditions was continuing. He received a period of disqualification of three and a half years, on top of the period of three years and four months he had been away from nursing.
- Although full details are not given in the reasons, it is clear that at least some of the material involved was more serious than the images possessed by the respondent, and the third charge, of distribution, is regarded as more serious offending than possession or accessing. On the other hand, there were in that case mitigating features, including insight and remorse.
- In Nursing and Midwifery Board of Australia v Hindley  VR 22 the practitioner was convicted of using a carriage service for accessing child pornography material after being found in possession of a significant quantity of such material. He had surrendered his registration, and was disqualified from applying for registration for two years from the decision, which was about one year and nine months after the registration was surrendered. The applicant submitted that this involved less serious criminal conduct as most of the material was very low level, but that indicates that some of the significant quantity was not, and the quantity of offending images in the present case was very small. There was, however, evidence of remorse and insight in that matter which is absent here.
- In Nursing and Midwifery Board of Australia v Brearley  QCAT 323 the practitioner pleaded guilty to a number of charges of accessing child pornography on the internet, one charge of possession of child pornography and one charge of “up-skirting”, the offence having been committed while at work. He had served a period of actual imprisonment for some months, and had not worked as a nurse for some time prior to that, although it is not clear when he stopped that work. He did not renew his registration in July 2011.
- A disqualification period of three years was imposed, and further registration was conditional on his having received counseling and treatment, and there being evidence that he was fit to return to nursing. There was also a condition imposed of direct supervision if working with a child, and some other conditions which would have made it difficult to obtain employment. It appears the period of disqualification was selected to avoid excluding recency of practice requirements for registration. In that matter the offending was worse, extending over a period of more than one year, and involving the “up-skirting” behavior in the workplace, and the sanction was imposed under an earlier legislative regime.
- I should also mention that in Health Ombudsman v Mak  QCAT 24 the practitioner, a nurse, was convicted of possession of child exploitation material, consisting of over 4,000 images, including 203 Category 4 images, the same category as the two worst images in this case. As well he had 239 video files, of which 150 were in category 4. The practitioner was suffering from a mental health problem, taken into account on sentence. By the time of the hearing he had surrendered his registration, had not worked as a nurse for over seven years, and said he did not intend to return to nursing. He was disqualified for three years, and reprimanded, as sought in joint submissions. That matter involved significantly worse offending, although the practitioner was said to have shown some insight and some remorse.
- Some of the matters relied on in the submissions for the applicant were conduct mentioned by the respondent in his initial interview with police, but the referral to the Tribunal alleged only the criminal conviction. As the sentencing judge pointed out, that related only to the thirteen images found in the respondent’s possession. The other matters sought to be relied on by the applicant are therefore conduct outside the scope of the referral. Accordingly I cannot take it into account in this proceeding. I must deal with the respondent on the basis that the only relevant conduct was his possession of the thirteen images the subject of the criminal conviction.
- Overall I consider that the matter is worse than Hindley because of the absence of mitigating features, but not as serious as the other matters discussed above. Since it appears the respondent will be deported, I expect that any preclusion period is likely to be academic. There is also the consideration that the respondent will have to satisfy the Board of his fitness to be registered before he can regain his registration, and in view of his conduct up to now, that is likely to be difficult, whenever he may apply for re-registration. For that reason, and in view of the periods imposed in the other matters I consider that a period of two years from the date of the decision of the Tribunal is appropriate, bearing in mind that this is on top of about three years away from practice already.
- With regard to the prohibition order sought, that the respondent not provide any health service until he has regained registration as a medical practitioner, that strikes me as an inappropriate limitation. Again, this is likely to be academic, but it would be more appropriate to have a prohibition order which was more relevant to the particular conduct involved. The concern would be with his having dealings with children, and a more appropriate order would be that he not provide a health service to a person under the age of eighteen until he obtains registration as a health practitioner. It would then be a matter for the relevant Board to decide, on all the material then available, whether to impose some relevant condition on his registration. That would depend on the situation at that time.
- Accordingly the decision of the Tribunal is that:
- The conduct of the respondent in the respect alleged in the referral was professional misconduct.
- The respondent is reprimanded.
- The respondent is disqualified from applying for registration as a health practitioner for a period of two years from this decision.
- The respondent is prohibited from providing any health service to a person under the age of eighteen years until such time as he obtains registration as a health practitioner under the National Law, or the corresponding law of a state or territory of Australia.
- The parties bear their own costs of this proceeding.
Health Ombudsman Act 2013 s 126. For their function, see s 127.
Health Ombudsman Act 2013, s 4(1).
Legal Services Commissioner v Madden (No 2)  1 Qd R 149 at .
Health Care Complaints Commission v Do  NSWCA 307 at ; Health Ombudsman v Kimpton  QCAT 405 at .
Medical Board of Australia v Blomeley  QCAT 163 at  – .
Pharmacy Board of Australia v Thomas  QCAT 637 at .
- Published Case Name:
Health Ombudsman v Sandhu
- Shortened Case Name:
Health Ombudsman v Sandhu
 QCAT 292
Judicial Member D J McGill SC, Dr J Cavanagh, Dr G Kelly, Ms J Stuckey
07 Sep 2021