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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Labib  QCAT 90
george tharwat abdUllah labib
Occupational regulation matters
24 March 2021 (ex tempore)
24 March 2021
Judge Allen QC, Deputy President
Professor Suzanne Kuys
Dr Viktoria Molloy
Mr James Walsh
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – referral by the Health Ombudsman – where the respondent is a registered physiotherapist – where the respondent videorecorded various males at the urinal and getting changed in a public bathroom – where the respondent pleaded guilty to 25 counts of Observations or Recording in Breach of Privacy (Genital or Anal Region) – whether such conduct should be characterised as professional misconduct – what sanction should be imposed for this conduct – whether and for what sum should the respondent be fined
Criminal Code 1899 (Qld), s 227A
Health Ombudsman Act 2013 (Qld), s 65, s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5, s 226
Craig v Medical Board of South Australia (2001) 79 SASR 545
Health Ombudsman v Pearson  QCAT 42
Health Ombudsman v Thomson  QCAT 145
Health Ombudsman v Trotta  QCAT 161
Health Ombudsman v Upadhyay  QCAT 163
Medical Board of Australia v Holding  QCAT 632
Medical Board of Australia v Khara  NTCAT 1048
Nursing and Midwifery Board of Australia v Brearley  QCAT 323
Psychology Board of Australia v Cameron  QCAT 227
C Templeton instructed by the Office of the Health Ombudsman
C Massy instructed by Fisher Dore Lawyers
REASONS FOR DECISION
- This is a referral of a health services complaint against George Tharwat Abdullah Labib (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 alleges, in the referral filed on 31 January 2020, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. In his response filed in the Tribunal, the respondent admits all the allegations in the referral. The parties are agreed as to the facts constituting the conduct the subject of the referral, that the conduct should be characterised as professional misconduct, and that the respondent should be reprimanded. The only matter in dispute between the parties is whether, in addition to a reprimand, an order should be made that the respondent pay a fine.
- The respondent is 29 years old and was aged 28 at the time of the conduct. The respondent obtained a Bachelor of Physiotherapy degree in Egypt in 2014. He was first granted registration by the Physiotherapy Board of Australia (Board) on 14 December 2018 and held limited postgraduate training or supervised practice registration at the time of the conduct the subject of the referral. Apart from the current referral, the respondent has no known notifications or disciplinary history. Apart from the convictions relating to the conduct the subject of the referral, he has no other criminal history.
- On 25 May 2019 the respondent attended the public toilets/changerooms on the Esplanade in Cairns. He had arranged to meet a friend who cancelled the meeting at the last minute. The respondent entered the changeroom with the intention to change into his swimming togs so that he could go for a swim in the Cairns Lagoon.
- Whilst in the changerooms, the respondent was observed acting in an unusual manner at the urinals. He was observed to move over to the urinals, holding his phone to his ear, as another male was using the urinals, and observed to walk away when the other male finished. When another male used the urinals, the respondent was observed to walk back to the urinals, again, with his phone to his ear.
- Police were notified and attended the changerooms. The respondent was observed attempting to delete images from his phone, which was seized by police. The respondent provided the PIN code for his phone when asked by police. Police found a number of videos on the respondent’s phone of males either using the urinal or changing clothes. The videos on the respondent’s phone clearly showed the genitals of the victims who had all been videoed without providing their consent.
- The respondent was arrested and charged with offences of Observations or Recordings in Breach of Privacy (Genital or Anal Region). On 15 July 2019 the respondent pleaded guilty to the 25 counts of Observations or Recordings in Breach of Privacy (Genital or Anal Region), contrary to section 227A(2) of the Criminal Code, in the Magistrates Court at Cairns. The respondent was sentenced to 12 months probation with a condition for medical assessment and treatment as directed by Corrective Services. No convictions were recorded.
- Both parties submit that the conduct should be characterised as professional misconduct, as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), and the Tribunal readily accepts those joint submissions.
- The conduct was a very serious violation of the privacy of the victims. Although all the offending occurred in the course of one event and has not been repeated at any time since, it involved multiple victims and devious and deliberate conduct over a not insignificant period of time.
- The unprofessional conduct of the respondent clearly amounted to conduct that is substantially below the standard reasonably expected of a registered physiotherapist of an equivalent level of training or experience.
- 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.
- On 2 October 2019 the applicant took immediate registration action, placing conditions on the respondent’s registration prohibiting contact with male patients and all patients under the age of 18 years, and requiring practice only at approved locations. On 16 February 2021 the applicant, pursuant to section 65(2)(a) of the HO Act, revoked the immediate registration action decision.
- On 21 January 2021 the Board granted the respondent general registration as a physiotherapist, subject to conditions that he practise only in places approved by the Board.
- From December 2019 the respondent undertook counselling by a psychologist, Dr Hatzipetrou, who has supplied a report for the purpose of Tribunal proceedings.
- The respondent, notwithstanding the criminal charges and restrictions on his practice by way of the applicant’s immediate registration action and conditions imposed by the Board, has continued in full-time employment.
- The material before the Tribunal includes a letter of support for the respondent from his employer who, clearly fully aware of the circumstances of the respondent’s conduct, speaks very highly of the respondent’s professional practice and character.
The purpose of orders by way 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, the imposition of sanction may serve one or all of the following purposes:
- (a)preventing practitioners, who are unfit to practise, from practising;
- (b)securing maintenance of professional standards;
- (c)assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
- (d)bringing home to the practitioner the seriousness of their conduct;
- (e)deterring the practitioner from any future departures from appropriate standards;
- (f)deterring other members of the profession that might be minded to act in a similar way; and
- (g)imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.
- Mitigating factors in the respondent’s favour include his lack of other disciplinary or criminal history, his full cooperation with the police investigation and prosecution of charges in the Magistrates Court, and his cooperation with the proceedings before this Tribunal. Evidence, by way of affidavit evidence from the respondent and the report of Dr Hatzipetrou, shows that the respondent has taken extensive steps towards his rehabilitation and demonstrated insight and genuine remorse regarding his behaviour.
- Mitigating factors also include the particular personal circumstances of the respondent at the time of the conduct which provides context to explain his behaviour. It is apparent, from Dr Hatzipetrou’s report and a report completed by a Corrective Services officer, that the respondent’s personal development and understanding of appropriate behaviour was substantially impacted by the cultural and social repression he suffered in Egypt, his lack of self-awareness at the time of the conduct, his social isolation at the time, and his difficulties in managing anxiety and depression. It should also be noted that whilst the respondent was aware that his actions were socially unacceptable, he was unaware that they were unlawful.
- The psychological evidence is clear that there is no element of paraphilia involved, and the evidence suggests that it is unlikely that the respondent will, again, engage in such, or similar, behaviour.
- During the course of the criminal prosecution, the respondent suffered the embarrassment of public scrutiny, being identified by name and photographic image in local media. It is likely that he will suffer further embarrassment of that type as a result of these proceedings.
- In light of all these circumstances, a finding of professional misconduct and a reprimand adequately addresses considerations of personal deterrence.
- As has been often stated, a reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.
- Both parties submit that an order reprimanding the respondent is appropriate, and the Tribunal agrees. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
- The question remains whether an additional order by way of a fine is necessary to meet the protective purposes of sanction.
- The applicant submits that the nature of the practice of physiotherapy is such that a message needs to be sent to other practitioners about the serious consequences that will follow upon conduct invading the bodily privacy of patients. The applicant submits that, for this reason, considerations of general deterrence are important in this matter, and an order for a fine is necessary to meet the need for general deterrence.
- The respondent emphasises that the conduct did not occur in the course of the respondent’s practice as a physiotherapist, and, thus, did not involve any abuse of the practitioner/patient relationship. The respondent submits that the rather unusual circumstances of this case, including the particular personal circumstances of the respondent at the time of the conduct, means that it is not a case where general deterrence is of particular significance.
- Both parties made reference to previous decisions of this, and other Tribunals. The applicant referred to the decisions of Health Ombudsman v Trotta and Nursing and Midwifery Board of Australia v Brearley. Both of those decisions involved conduct in the course of practice by health practitioners of a much more serious kind. The decisions were not referred to for reasons of comparability of sanction imposed as a guide to appropriate sanction in this case, but to underline the point made by the applicant as to the importance of general deterrence because of the vulnerability of patients, including physiotherapy patients, to similar invasions of privacy.
- The applicant also referred to a number of decisions in which fines were imposed by the Tribunal.
- In Medical Board of Australia v Holding, orders for sanction included both a reprimand and a fine of $5000 for unprofessional conduct by a medical practitioner constituted by sending inappropriate text messages to a patient during the course of two days. It is significant to note that the respondent, there, was initially dishonest in the course of the investigation of his conduct. The Tribunal found that the respondent exhibited an absence of remorse and less than satisfactory insight. That is a significant distinguishing factor with the case of this respondent, given the extent of his cooperation and demonstrable remorse and insight.
- In the Medical Board of Australia v Khara, orders for sanction for unprofessional conduct were a reprimand of the respondent and an order for a fine of $5,000. The Northern Territory Civil and Administrative Tribunal noted a similarity of the circumstances of the case before it with that of Medical Board of Australia v Holding.
Another aspect of similarity between the two cases was the demonstrable lack of insight and lack of full candour of the respondent, requiring a contested hearing which resulted in factual findings adverse to the respondent medical practitioner who was found to have engaged in boundary violations with a patient as a result of inappropriate suggestive comments in a situation where the respondent was undertaking an intimate examination of the patient.
- In Health Ombudsman v Thomson, the respondent was reprimanded and fined the sum of $1,000 after a finding of unprofessional conduct by the respondent registered nurse, constituted by inappropriate text messages to a patient. It is clear that, in that matter, considerations of personal deterrence were significant because of a prior boundary violation by the respondent and limited evidence of insight on the part of the respondent. It was also considered that the imposition of a fine supported considerations of general deterrence and maintenance of public standards.
- The applicant points out that those three matters involve sanctions imposed after findings of unprofessional conduct, rather than the more serious finding of professional misconduct in relation to the respondent. Whilst that is true, each case depending upon its own facts, it is the particular facts of the conduct and the other relevant circumstances which are of importance, rather than the statutory characterisation of the conduct.
- The applicant also referred to Health Ombudsman v Upadhyay, in which a reprimand and a fine of $10,000 were ordered after a finding of professional misconduct, and Health Ombudsman v Pearson, in which a reprimand and a fine of $15,000 were ordered after a finding of professional misconduct. Both of those cases involved serious and prolonged violations of the boundary between the medical practitioners and patients.
- The applicant does not submit that the quantum of the fines ordered in those cases provide comparators for an appropriate fine in the case of the respondent. The applicant submits that a fine of $5,000 would be appropriate to address considerations of general deterrence.
- The respondent submits that a finding of professional misconduct and a reprimand adequately addresses considerations of general deterrence, and that no fine should be ordered, or, alternatively, if a fine was to be ordered, it would be significantly less than the $5,000 fine contended for by the applicant.
- In reaching a conclusion as to sanction, I have been assisted by the views expressed by all the assessors. Ultimately, I have concluded that the seriousness of the conduct of the respondent does require a sanction in addition to a reprimand to adequately denounce the conduct and send a message to other practitioners as to the seriousness of such conduct, and the consequences that will flow from such conduct, whether it be in a public setting, such as involved in this matter, or, more particularly, in the course of a health practitioner’s professional practice.
- Having regard to the particular circumstances of this case and those Tribunal decisions that have been referred to, I have determined that a fine of $2,000 is adequate to meet the considerations of general deterrence and the protective purposes of sanction.
- Pursuant to section 107(3)(c), the respondent is fined the sum of $2,000 to be paid to the applicant within five months.
- The parties are agreed that there be no order for costs, and the orders of the Tribunal will reflect that the default position, pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), will apply.
- Published Case Name:
Health Ombudsman v Labib
- Shortened Case Name:
Health Ombudsman v Labib
 QCAT 90
24 Mar 2021