Health Ombudsman v XHC[2021] QCAT 373

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against the 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 Office of the Health Ombudsman (applicant).
2. [2]
   At the time of the conduct the subject of the referral, the respondent had held registration as a registered nurse for more than 20 years. The conduct did not occur in the course of the respondent’s practice as a registered nurse. The conduct involved a rather unusual instance of the criminal offence of making child exploitation material (CEM).
3. [3]
   The parties are agreed as to the facts of the conduct, its proper characterisation as professional misconduct and appropriate orders by way of sanction. The Tribunal acceded to the request of the parties that the matter be heard on the papers without an oral hearing.

Conduct

4. [4]
   At the time of the conduct, the respondent was involved in a sexual relationship with a registered medical practitioner (Dr XPW). As part of their relationship, the respondent and Dr XPW would engage in fantasy role play where the respondent played the role of various female children aged between 7 and 15 years old and Dr XPW played the role of an adult male. Between 1 October 2017 and 1 May 2018, the respondent and Dr XPW had approximately thirteen text message conversations which were later the subject of the charge of making CEM. The majority of the conversations involved Dr XPW as the dominant male, describing what he would do to the “child” sexually. The conversations were often in the third person, as though the pair were talking about a real child. Dr XPW contributed most to the content of the conversations. His text messages included graphic descriptions of him engaging in sexual violation of the fictional victims. The respondent’s contributions were, in comparison, brief and often merely expressing agreement to Dr XPW’s suggestions.
5. [5]
   The conduct came to light when a witness observed Dr XPW composing text messages to the respondent and reported him to police. During subsequent police investigation of Dr XPW and the respondent, forensic examination of electronic devices seized from the respondent revealed evidence of the text messages and the respondent was charged with one count of making CEM.
6. [6]
   The respondent appeared in the District Court of Queensland and pleaded guilty to one count of making CEM on various dates between 1 October 2017 and 1 May 2018, contrary to section 228B(1) of the Criminal Code (Qld). The respondent was placed on probation for a period of 12 months with a condition that she submit to medical, psychiatric or psychological assessment and treatment as directed. No conviction was recorded.
7. [7]
   The respondent does not resist a finding that her conduct should be characterised as professional misconduct. The Tribunal finds that the conduct of the respondent should be characterised as “professional misconduct” as defined in section 5 of the Health Practitioner Regulation National Law (Queensland).

Subsequent events

8. [8]
   On 2 January 2019, the applicant received information from police that the respondent had been charged with making CEM. The applicant commenced its investigation that same day.
9. [9]
   On 31 January 2019, the applicant decided to take immediate registration action, pursuant to section 58(1)(d) of the HO Act, and imposed conditions on the respondent’s registration, including prohibiting contact with patients under the age of 18 years. Such conditions have remained in place until determination of these proceedings.
10. [10]
    The respondent’s prosecution and conviction and the immediate registration action had significant impacts upon the respondent’s ability to hold nursing employment.
11. [11]
    The respondent was dismissed from her nursing employment soon after the conduct came to light and from subsequent nursing employment upon being charged and after media reports of her impending sentence. The respondent had to resort to unskilled non-health related employment for a lengthy period before obtaining nursing employment possible with the conditions on her registration. 

Sanction

12. [12]
    The purpose of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[1] the imposition of sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
13. [13]
    The respondent has been cooperative during both the criminal proceedings and the Tribunal proceedings.
14. [14]
    The respondent obtained a report from a consultant clinical psychologist which was admitted during the sentencing proceedings in the District Court. The clinical psychologist opined that the respondent’s high functioning autism, depression and anxiety were significant contributing factors to her offending in diminishing her judgment as to the inappropriateness of her conduct. He assessed her risk of re-offending as low.  The respondent subsequently undertook psychological treatment.
15. [15]
    The Tribunal accepts that the respondent’s conduct was out of character and unlikely to be repeated. Considerations of personal deterrence are of limited significance in determining sanction.
16. [16]
    Considerations of general deterrence, although of diminished significance due to the contribution of the respondent’s psychiatric disorders to her conduct,^[2] remain significant.
17. [17]
    The respondent’s conduct has the potential to diminish public trust and confidence in the nursing profession. It requires denunciation by way of a reprimand.
18. [18]
    Both parties submit that a reprimand is sufficient to meet the protective purposes of sanction. Determination of sanction remains a discretionary matter for the Tribunal notwithstanding any agreement between the parties. However, the Tribunal ought not readily depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.^[3]
19. [19]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[4] Although the sting of a reprimand is diminished in a matter where the reasons of the Tribunal are anonymised, the fact of the reprimand will remain recorded on the public Register until such time as the Nursing and Midwifery Board of Australia considers it appropriate to remove it.^[5]
20. [20]
    In the particular circumstances of this case, in light of the consequences already suffered by the respondent as a result of her conduct, a reprimand is sufficient to meet considerations of general deterrence and maintenance of professional standards and public confidence in the profession.

Other orders

21. [21]
    The applicant does not contend that any further limitations on the respondent’s practice were required and it is necessary to order, pursuant to section 62(2)(a)(ii) of the HO Act, that the order of the applicant to take immediate registration action be set aside.
22. [22]
    The identity of Dr XPW is the subject of a non-publication order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), made in proceedings following the applicant’s referral of Dr XPW to the Tribunal. The applicant submits that publication of the identity of the respondent might tend to identify Dr XPW and thus abrogate the effect of that order. Both parties accordingly contend for an order prohibiting publication of the identity of the respondent. The Tribunal is satisfied that the discretion to make such an order is enlivened pursuant to section 66(2)(a), (b) and (d) of the QCAT Act and that such an order should be made.
23. [23]
    The parties do not seek any order as to costs.