Health Ombudsman v XPW[2021] QCAT 403

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 Health Ombudsman.
2. [2]
   The respondent is aged 60 years. He is an experienced medical practitioner, having obtained the degree of Bachelor of Medicine and Bachelor of Surgery in his country of birth in 1984.
3. [3]
   The conduct the subject of the referral did not occur in the course of the respondent’s practice as a medical practitioner. The conduct involved the commission of criminal offences involving child exploitation material (CEM).
4. [4]
   The parties agree as to the facts of the conduct the subject of the referral, that the conduct should be characterised as professional misconduct and that the respondent should be reprimanded. The real issue in dispute is whether the respondent, who has not practised for about 3 years as a consequence of his conduct and is currently unregistered, should be precluded from applying for re-registration as a medical practitioner for a period of time.

Conduct

5. [5]
   At the time of the conduct, the respondent was involved in a sexual relationship with a registered nurse (XHC). As part of their relationship, the respondent and XHC would engage in fantasy role play where XHC played the role of various female children aged between 7 and 15 years old and the respondent played the role of an adult male. Between 1 October 2017 and 1 May 2018, the respondent and XHC had approximately thirteen text message conversations which were later the subject of a charge of making CEM. The majority of the conversations involved the respondent 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. The respondent contributed most to the content of the conversations. His text messages included graphic descriptions of him engaging in sexual violation of the fictional victims. XHC’s contributions were, in comparison, brief and often merely expressing agreement to the respondent’s suggestions.
6. [6]
   On 1 October 2018, the respondent was on a commercial flight in Canada, exchanging text messages with XHC. These text messages described sexual activity involving children aged between 5 and 12 years of age. A passenger sitting directly beside the respondent observed this activity and alerted authorities.
7. [7]
   On 3 October 2018, the Royal Canadian Mounted Police (RCMP) arrested and charged the respondent with producing, possessing, and disseminating child pornography material. He was remanded in custody until being released on bail on 19 November 2018.
8. [8]
   The RCMP conducted a forensic examination of the respondent’s phone and located a typed story, approximately 900 words in length, entitled ‘I get aroused by very young girls’, which contained sexually explicit descriptions of an adult abusing his female step-children. It includes a disturbingly graphic description of the rape of a 12 year old child. The document had been created on 2 October 2018 and had been saved in the ‘notes’ folder of the respondent’s phone,.
9. [9]
   The RCMP subsequently notified the Queensland Police Service (QPS) of the respondent and XHC’s alleged conduct and the QPS conducted its own investigation.
10. [10]
    On 23 October 2018, the QPS executed a search warrant at XHC’s address and seized electronic devices. A forensic examination of the devices revealed that, between 1 October 2017 and 1 May 2018, the respondent and XHC had approximately thirteen text message exchanges which constituted CEM.
11. [11]
    On 22 November 2018, the QPS executed a search warrant at the respondent’s residence and seized several computer hard drives. Police conducted a forensic examination of the devices and located 10 x Oliver scale category 1 (non-sexual activity) child exploitation images on one of the hard drives.
12. [12]
    On 31 January 2019, the respondent was charged with one count of making CEM between 1 October 2017 and 1 May 2018, contrary to s 228B(1) of the Criminal Code (Qld), and one count of possessing CEM on 22 November 2018, contrary to s 228D of the Criminal Code (Qld).
13. [13]
    On 13 December 2019, a Commonwealth ex officio indictment was presented in the District Court, charging the respondent with one count of producing CEM outside of Australia on or about 1 October 2018, contrary to section 273.5(1) of the Criminal Code (Cth). The respondent entered a plea of guilty to that offence on that date.
14. [14]
    On 14 January 2020, the criminal charges in Canada were discontinued.
15. [15]
    On 24 February 2020, the respondent pleaded guilty to both counts on the Queensland indictment and was sentenced for all three offences. With respect to the State offences, the respondent was sentenced to 18 months’ probation with the condition that he submit to medical, psychiatric or psychological treatment as directed by a corrective services officer. Convictions were not recorded. With respect to the Commonwealth offence, the respondent was released upon a $1,000 recognisance to be of good behaviour for a period of three years. A conviction was recorded.

Regulatory action

16. [16]
    On 9 November 2018, the respondent’s legal representatives notified the Australian Health Practitioner Regulation Agency (AHPRA) that the respondent had been charged with offences in Canada. On 3 December 2018, the respondent’s legal representatives advised the Office of the Health Ombudsman that the respondent was on indefinite leave, had no immediate plans to return to practice and was willing to undertake not to treat patients under 18 years of age.
17. [17]
    On 3 January 2019, the Health Ombudsman decided to take immediate registration action against the respondent and prohibited the practitioner from treating patients under 18 years of age.
18. [18]
    On 15 December 2020, the Medical Board of Australia refused the respondent’s application for renewal of his registration as a medical practitioner on the ground that the respondent was not a fit and proper person to hold registration.
19. [19]
    Consequently, on 19 January 2021, the Health Ombudsman revoked the immediate registration action decision.

Characterisation of the conduct

20. [20]
    Both parties submit that the respondent’s conduct should be characterised as “professional misconduct” under limb (a) of the definition of that term in s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), being:

unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

21. [21]
    The Tribunal readily accepts those submissions.
22. [22]
    Despite the respondent’s contention to the contrary, the Tribunal is also satisfied that the conduct is caught by limb (c) of the definition, being:             

conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

23. [23]
    The respondent involved another health practitioner, over a substantial period of time, in an exchange of text messages which included acting out graphic fantasies of vile abuse of child victims. He composed and saved a detailed electronic note of similar fantasies including disturbingly graphic detail of the rape of a 12 year old girl. He sought and downloaded CEM images. Although the number of such images were small and their content at the lower scale of seriousness, behind every such image lies a real child whose degradation is continued by such behaviour,
24. [24]
    The totality of conduct, given its nature and what it reveals about the character of the respondent at the time of that conduct, readily meets the definition of “professional misconduct” in limb (c) of that definition.
25. [25]
    The conduct of the respondent was conduct inconsistent with the respondent being a fit and proper person to hold registration in a caring profession. It meets both limbs (a) and (c) of the definition of “professional misconduct” in s 5 of the National Law.
26. [26]
    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

27. [27]
    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.
28. [28]
    The respondent has a number of mitigating factors in his favour:

    1. (a)
       he co-operated fully with police investigations into his behaviour;
    2. (b)
       he made a timely notification to AHPRA of being charged;
    3. (c)
       he voluntarily ceased practice;
    4. (d)
       he sought appropriate treatment to address mental health issues and completed a child sex offenders course;
    5. (e)
       he entered timely pleas of guilty to the criminal charges;
    6. (f)
       he complied with the requirements of probation;
    7. (g)
       he has co-operated in the conduct of the proceeding in the Tribunal;
    8. (h)
       he is genuinely remorseful for his conduct; and
    9. (i)
       he has produced character references from his peers, work colleagues, family and friends confirming their high regard for him, professionally and personally.
29. [29]
    Further, the respondent has already suffered the personal deterrence of a period of time in custody in Canada and denunciation and vilification by media reporting and associated on-line commentary. Medical evidence before the Tribunal shows that this publicity has had a significant negative impact on the respondent’s mental health.
30. [30]
    The respondent seeks to further mitigate his conduct by reason of the contribution of mental illness to his conduct.^[2]
31. [31]
    The respondent was diagnosed with Bipolar Affective Disorder in 2010 and subsequently successfully treated by medication thereafter.
32. [32]
    The respondent deposes to using his text message exchanges with XHC as a “stress management technique”, unknowingly addressing aspects of then undiagnosed post-traumatic stress disorder (following trauma in armed conflict overseas) and the Bipolar Affective Disorder. He deposes to running out of his medication during his trip to Canada and his conduct on 1 and 2 October 2018 occurring in the context of a manic episode. He deposes to having no recollection of downloading the images the subject of the possession of CEM offence and believes he would have been in a manic state when the images were downloaded at about 4 am on 29 November 2016.
33. [33]
    The respondent’s treating psychiatrist provided a report for use in the sentence proceedings in the District Court and opined:

There is a suggestion that in the days prior to his arrest in Canada, [the respondent] was experiencing a hypomanic episode with increased sexual drive and decreased inhibition. That may have contributed in some way to the extent of his sexual writings and texts in the immediate period prior to his arrest by Canadian authorities on the 3^rd of October 2018.

…

Given the duration and frequency of the expression of sexual fantasies between [the respondent] and [XHC], it is clear that [the respondent’s] Bipolar Disorder is not responsible for the intimate aspects of their relationship, nor the exploration of sexual fantasies with which they engaged.

However, it is conceivable that [the respondent] was in a hypomanic (or manic) mood state in the days prior to his arrest by Canadian authorities on the 3^rd of October 2018. During this time, as would be consistent with his typical pattern of mood disturbance, he described heightened energy, a decreased need for sleep, increased sexual drive and diminished inhibition. In this regard, he may have been more prone to engaging in sexualised activities, including sending explicit text messages to [XHC].

The downloading of (non-paedophile) pornographic images is something that has occurred at times when [the respondent] has been hypomanic (or manic). The small number of images of concern when viewed in the context of a larger volume of pornographic images, the time they were downloaded (approximately 3.30am), and his lack of any attempt to conceal them, makes me conclude that they were likely to have been downloaded at a time of disinhibition.

34. [34]
    Such opinions are not challenged and may be accepted as accurate.
35. [35]
    The respondent’s mental illness does not explain his text correspondence with XHC which constituted the offence of making CEM between 1 October 2017 and 1 May 2018. The respondent’s disinhibition by reason of his Bipolar Disorder may have contributed to his downloading of images constituting the offence of possessing CEM on 22 November 2018 and the offence of producing child exploitation material outside of Australia on or about 1 October 2018. However, I do not consider the contribution of the respondent’s mental illness significantly reduces the respondent’s moral culpability for his conduct or the importance of considerations of general deterrence, denunciation, and protection of the reputation of the profession in determining sanction. Such disinhibition only served to further reveal an underlying defect of character that had been manifest throughout the respondent’s text messaging with XHC. The mental illness cannot explain or excuse the perverted terms of the contents of the text correspondence or the document created on or about 2 October 2018. It is of limited significance as a mitigating factor.
36. [36]
    The respondent’s subsequent successful resumption of treatment of his mental illness is of relevance to the need for personal deterrence. The respondent’s treating psychiatrist is of the opinion that the respondent has never been at risk of contact offending against a child and that the risk of repeat like offending is extremely low. I accept that opinion. Considerations of personal deterrence are of little importance in this matter. Further preclusion of the respondent from practice is not required for immediate protection of patients. Considerations of general deterrence, denunciation and protection of the reputation of the profession are more important in this matter.
37. [37]
    Both the parties submitted that the respondent should be reprimanded. His conduct clearly deserves denunciation by the Tribunal. Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
38. [38]
    The issue to be determined is whether the respondent should be disqualified for a period of time from reapplying for registration. In this regard, the fact that the respondent has not practised for about 3 years as a consequence of his conduct is an important consideration. Is a further period of preclusion from practice required to meet the protective purposes of sanction? This is a matter upon which minds might reasonably differ and I have been greatly assisted in my determination by the views expressed by all assessors.
39. [39]
    Both parties referred to the decision of Medical Board v Black (Review and Regulation)^[3]. I have also had regard to Health Ombudsman v Franklin^[4] and the cases discussed therein^[5], Health Ombudsman v Asinas^[6]and Health Ombudsman v XHC^[7]. None of the decisions bear sufficient similarity to provide more than general guidance by way of yardsticks. Determination of appropriate sanction remains very much a matter of impression in the circumstances of the particular case, aided by the impressions of the professional and public assessors.
40. [40]
    I have determined that no less than a total of four years’ preclusion from practice is required to meet the protective purposes of sanction of general deterrence, denunciation, and protection of the reputation of the medical profession. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner for a period of 12 months.

Non-publication order

41. [41]
    An interim non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) was made on 25 September 2020 after the Tribunal concluded, after considering medical evidence and hearing submissions in support of such an order from both parties, that such an order was necessary to avoid endangering the respondent’s mental health.^[8]
42. [42]
    Updated medical opinion produced at the time of hearing supported continuation of the order for the same reason. Both parties submitted the order should continue.
43. [43]
    The Tribunal is satisfied that continuation of the order is necessary to avoid endangering the respondent’s mental health. The order made on 25 September 2020 will continue to have effect and these reasons have been anonymised accordingly.