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Health Ombudsman v Harirchian[2022] QCAT 143

Health Ombudsman v Harirchian[2022] QCAT 143

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Harirchian [2022] QCAT 143

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

ramin harirchian

(respondent)

APPLICATION NO/S:

OCR 113-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 March 2022 (ex tempore)

Amended on 6 June 2025

HEARING DATE:

9 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by

Associate Professor Byrne

Dr Bavahuna Manoharan

Ms Jane Stuckey

ORDERS:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2009 (Qld), in respect of each of the allegations, the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2009 (Qld), the respondent is reprimanded.
  3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2009 (Qld), the respondent’s registration is cancelled.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2009 (Qld), the respondent is disqualified from applying for registration for a period of 2 years from the date of order.
  5. Each party bear its own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was a medical practitioner specialised and working as a general practitioner – where the respondent was convicted after trial for sexual assault of a patient during a consultation and sentenced to eight months imprisonment suspended after three months for an operational period of two years – where the respondent also plead guilty to various dishonesty and drug related offences and was fined – where the respondent admits the allegations but demonstrates limited insight or remorse – where the respondents registration had been suspended by the Board for a period of 33 months at the time of the hearing – where parties agree the respondents registration should be cancelled – whether the period of cancellation should be between 12 months and four years

Health Ombudsman Act 2013 (Qld) s 4, 107

Health Practitioner Regulation, National Law Act s 5, 130, 169, 176

Briginshaw v Briginshaw (1938) 60 CLR 336

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Care Complaints Commission v Ng [2015] NSWCATOD 139

Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3

Health Care Complaints Commissioner v King [2013] NSWMT 9

Health Ombudsman v Arora [2019] QCAT 200

Health Ombudsman v Chang [2022] QCAT 58

Health Ombudsman v Haririchian [2021] QCA 141

Health Ombudsman v NML [2018] QCAT 164

Health Ombudsman v Wrede [2019] QCAT 356

HO v Barber [2017] QCAT 431

HO v Brown [2019] QCAT 218

HO v Vale [2020] QCAT 363

Legal Services Commission v McLeod [2020] QCAT 371

Medical Board of Australia v Cukier [2017] VCAT 109

Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822

Medical Board of Australia v Lee (Review and Regulations) [2020] VCAT 568

Medical Board of Australia v Thomas (Review and Regulation) [2021] VCAT 229

The Health Ombudsman v Jolley [2019] QCAT 173

APPEARANCES &

REPRESENTATION:

 

Applicant:

C Templeton, instructed by the Office of the Health Ombudsman

Respondent:

J Jones, instructed by Avant Law

REASONS FOR DECISION

Background

  1. [1]
    By a referral filed on 30 April 2020 these disciplinary proceedings were referred by the director applicant to the Tribunal.
  2. [2]
    The proceedings relate to three allegations.  The matter has proceeded by way of agreed facts.  The significant disparity between the positions of the applicant and the respondent is the length of time that any disqualification from medical practice should be, from today, before the respondent can apply for re registration.  Other aspects of a proposed sanction are agreed, which include the characterisation of the conduct and that an order for cancellation of the respondent’s registration is appropriate.

Facts

  1. [3]
    The respondent (aged 53 at the time of these reasons) completed his medical training in Iran in 1994.  He was first registered as a medical practitioner in Australia on 17 September 2007, holds general and specialist registration with the Medical Board of Australia as a general practitioner and his registration is currently suspended. During the events the subject of the allegations, he was working in a medical clinic in suburban Brisbane.
  2. [4]
    The first allegation is admitted actions by the respondent which led to the respondent being found guilty of sexual assault by a District Court jury on 28 November 2019.  The factual basis for the conviction was that the respondent touched a patient’s labia or clitoris during a consultation discussing symptoms of diarrhoea and feeling unwell[1]. (The Tribunal notes the date of the consultation was 18 October 2018)[2].  On 6 December 2019 the respondent was sentenced to imprisonment for eight months, suspended for an operational period of two years after he had served a period of three months.  The sentencing remarks of the learned sentencing judge, which form part of the hearing brief, record that the only reason the conduct stopped was because the patient moved away from the respondent, there was a significant breach of trust and the patient was vulnerable, having English as a second language and being younger than the respondent.  He referred to a victim impact statement noting that the offending had clearly had a significant effect, emotionally, on the patient. 
  3. [5]
    The second is admitted allegations that the respondent pleaded guilty on 30 July 2019 in the Brisbane Magistrates Court to:
    1. (a)
      18 charges of fraud;
    2. (b)
      two charges of attempted fraud; and
    3. (c)
      one charge of possessing dangerous drugs.
  4. [6]
    The Tribunal observes that the date range for the fraud charges was a period between 25 September 2018 and 16 November 2018.  The possession charge occurred on 18 November 2018[3].
  5. [7]
    The respondent was fined $6,000 in the Magistrates Court and no conviction was recorded.
  6. [8]
    The underlying facts giving rise to the charges involved the respondent:
    1. (a)
      whilst working as a general practitioner at a clinic in suburban Brisbane, accessing electronic patient records to print prescriptions in patients’ names which he filled for his own personal use;
    2. (b)
      after he ceased practicing at the clinic, writing prescriptions in patients’ names which he filled for his own personal use; and
    3. (c)
      being found in possession of dangerous drugs for which he had no valid prescription.
  7. [9]
    The medications which the respondent obtained were Schedule 4 or Schedule 8 medications.  The patients did not have consultations with the respondent on the relevant dates and the patients had never been prescribed the medications which were the subject of the respondent’s fraudulent conduct.
  8. [10]
    The third and final allegation is that it is admitted that the respondent made a false declaration on his renewal of registration form.  That involved him stating, in an online application to AHPRA for the annual renewal of his registration as a general practitioner on 5 August 2019: “No” to the question: “Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?”
  9. [11]
    At that time the respondent had the criminal history that he had been found guilty on 30 July 2019 of the 21 counts of fraud and related offences just referred to and he had not previously disclosed that criminal history to AHPRA using a Notice of Certain Events form.  It is accepted that he had notified the Office of the Health Ombudsman of his conviction but he had failed to provide notice in accordance with s 130 of the National Law.
  10. [12]
    It is accepted as between the parties that:
    1. (a)
      the respondent had, as a part of the Board’s investigation into his impairment, made disclosures of his intention to plead guilty to the fraud and related offences;
    2. (b)
      that he intended to plead guilty to the fraud and other offences was contained in the report of Dr Prior dated 15 July 2019 (which was produced consequent upon a health assessment under s 169 of the National Law);
    3. (c)
      the Board considered Dr Prior’s report on 18 December 2019, 12 February 2020 and 26 February 2020;
    4. (d)
      in a meeting with Medical Board member Professor Harry McConnell, under s 176(3) of the National Law the respondent disclosed his guilty plea in the Magistrates Court, the imposition of the fine and the fact that no conviction had been recorded.
  11. [13]
    The applicant clarified in oral submissions that allegation 3 proceeds on the basis that there was no intentional dishonesty in the course of the notification.
  12. [14]
    The respondent has been the subject of immediate registration action by the Health Ombudsman, an investigation for a health impairment by the Medical Board and a suspension of his endorsements to prescribe by Queensland Health.  A detailed chronology was attached to the Agreed Statement of Facts. The below appears as a summary of the most significant aspects of the various actions:
    1. (a)
      between 19 October 2018 and 2 March 2020 the respondent’s registration was subject to conditions which prohibited him from seeing female patients;
    2. (b)
      between 25 February 2019 and 2 March 2020 the respondent was unable to prescribe medications due to action taken by Queensland Health in respect of his endorsements;
    3. (c)
      since 26 February 2020 the respondent’s registration has been subject to conditions that:
      1. he only work in employment approved by the Medical Board;
      2. limit the number of hours he works;
      3. require him to engage in supervised practice;
      4. he not prescribe Schedule 8 medications, Schedule 4 Restricted drugs or Tramadol;
      5. he attend with his treating practitioners; and
      6. he undertake regular urine and hair drug screening;
    4. (d)
      on 3 March 2020 the respondent’s registration was suspended. He successfully sought review of that decision in QCAT.  The applicant successfully appealed that review decision to the Court of Appeal[4].  Consequent upon the Court of Appeal’s decision, the respondent has been suspended since 29 June 2021;
    5. (e)
      since 18 October 2018 the respondent has not been able to work for a total of 33 months and 29 days as at today.  The Tribunal notes that for three months of that period he was serving the actual custodial term of the sentence for sexual assault; and
    6. (f)
      the suspension as a consequence of immediate action taken by the Board totals a period of one year, four months and one day within that 33 month period. Those figures are not contained in annexure A but are figures which were provided by the parties today.

The respondent’s professional and disciplinary history

  1. [15]
    The respondent has no prior disciplinary history for matters before the events the subject of the referral. 
  2. [16]
    The respondent saw Dr Frank New, psychiatrist, primarily for clinical purposes, over a period from 17 July 2020 to 6 August 2021.  Dr New provided a report dated 24 August 2021. In brief Dr New observed in the report:
    1. (a)
      the respondent was astute, intelligent and well motivated;
    2. (b)
      he had responded commendably to instances of unprofessional behaviour;
    3. (c)
      there were no unusual risks to the public posed by his medical conditions;
    4. (d)
      the likelihood of a recurrence of Substance Use Disorder is so limited as to not require special restrictions;
    5. (e)
      the risk of him sexually offending was no greater than for other practitioners: although he continues to maintain he is innocent of the charge of which he was found guilty, the experience has caused him to focus on the relevant issues: he is now much more aware of the risk of acting in a manner which could be misinterpreted; and
    6. (f)
      he assessed the respondent’s remorse is genuine and not consistent with a sociopathic personality style.   
  3. [17]
    Dr Haririchian has affirmed an affidavit dated 14 October 2021. Relevantly he deposes:
    1. (a)
      to his history of back pain, that he started self medicating and that he formed an addiction to pain medication.  He last took opiod pain medication on 18 November 2018.  Subsequently he obtained treatment for his back pain which has seen it disappear entirely;
    2. (b)
      he deeply regrets the decisions he made that led to him becoming dependent on pain medication;
    3. (c)
      his pleas of guilty in respect of that offending caused him shame;
    4. (d)
      he did not intend to not notify of his conviction. He did not realise he had to make the notification when the matters went from charge to conviction.  As he had ‘no conviction recorded’ for the charges he understood that to mean that he did not have a criminal history;
    5. (e)
      in respect of the sexual assault charge, that he maintains his innocence, but acknowledges the conviction, the seriousness of it and the consequences of it;
    6. (f)
      how he managed to work as a doctor, with restrictions concerning what drugs he could prescribe and that he could not see female patients and that he complied with his urine and hair drugs screening conditions.  He confirms he has worked for about 6 months only as a doctor in the period from November 2018 to the time of his affidavit.  He obtained work as a delivery driver for a florist on 23 August 2021;
    7. (g)
      he has been open with his family, friends and colleagues about his convictions and his conduct and he understands it is important that he is held publicly accountable;
    8. (h)
      he has completed a number of online courses offered by Avant including on topics involving professional boundaries and prescribing practices[5]; and
    9. (i)
      he has read and understood the Court of Appeal’s decision in Health Ombudsman v Harirchian[6] and he understands the conviction informs the community that he committed the offence and the associated concerns with a convicted doctor returning to practice. He has endeavoured to do all he can to demonstrate insight whilst maintaining his innocence.
  4. [18]
    Numerous affidavits have been filed in support of the respondent.
  5. [19]
    Medical or health based colleagues who have worked with him or referred patients to him depose to him being:
    1. (a)
      hard working and honest[7], very professional and caring and well liked by all his staff and patients and an excellent doctor[8], a professional, hard working and competent doctor[9], a doctor who was professional, courteous and appropriate in his interactions with patients and staff[10]; 
    2. (b)
      someone whose patients always spoke well of him[11];
    3. (c)
      a talented and hard working doctor, who was always well liked by his team members and patients[12]; and
    4. (d)
      that his convictions for sexual assault of a patient and fraud are out of character[13].
  6. [20]
    Personnel who were employed at the practices where he worked depose to him being:
    1. (a)
      a genuine, kind hearted and respectable person who is always polite, courteous, dependable and trustworthy[14], professional, polite, respectful and friendly and one of the best doctors ever worked with[15]; and
    2. (b)
      that his convictions for sexual assault of a patient and fraud are out of character[16].
  7. [21]
    Some of his former patients also depose to:
    1. (a)
      his abilities as a doctor and the confidence they have in him[17];
    2. (b)
      him being always professional, courteous and well mannered[18]; and
    3. (c)
      that his convictions for sexual assault of a patient and fraud are out of character[19].

The parties’ submissions

Characterisation of the conduct

  1. [22]
    The respondent accepts that all of his conduct constituted professional misconduct, acknowledging that the conduct the subject of the first two allegations is ‘undoubtedly serious’.  His submission is that it is not necessary for the Tribunal to determine which subsection of section 5 is engaged, in circumstances where he accepts that cancellation of his registration is warranted to achieve the purpose of the disciplinary proceedings.
  2. [23]
    The applicant accepts this submission is consistent with the authorities. 
  3. [24]
    Following the reasons of the Tribunal in HO v Barber[20], HO v Brown[21] and HO v Vale[22], in circumstances where the respondent accepts his misconduct is professional misconduct and so serious as to warrant cancellation of his registration, it is not necessary for the Tribunal to determine which of the subsections is engaged, as nothing flows from it.  The Tribunal is comfortably satisfied that the respondent’s conduct constitutes professional misconduct.

Sanction

  1. [25]
    In support of its submission that there should be an extended period before the respondent is entitled to apply for registration again, the applicant submits:
    1. (a)
      in respect of the sexual assault allegation:
      1. the respondent has failed to demonstrate genuine insight or remorse with respect to the sexual assault.  The respondent has not provided any evidence of efforts of treatment or rehabilitation that may address the underlying issues that led to his conduct that occurred on 18 October 2018;
      2. the applicant acknowledges the respondent has an intellectual understanding of what’s occurred and its consequences to him, and so to that extent has shown some limited insight.  The applicant points to the fact the respondent has not explained his conduct. It was perpetrated on a vulnerable female patient in circumstances where she placed absolute trust in the practitioner to behave in professional and ethical manner. That trust was violated;
      3. the respondent’s commission of a sexual assault on his female patient was a very serious instance of professional misconduct where the respondent exploited the power imbalance between himself and a vulnerable young woman for his own gratification;
    2. (b)
      in respect of the respondent’s convictions for forgery and uttering of prescriptions the applicant acknowledges that this conduct was in the context of the respondent developing a Substance Use Disorder (Opiates) between March 2018 and following the aggravation of chronic low back pain in March 2018.  This needs to be brought to some account in moderation (but not elimination) of considerations of general deterrence consistent with authority; [23]
    3. (c)
      both general and personal deterrence are relevant factors for the Tribunal in fixing an appropriate sanction.  Personal deterrence is important because the respondent, in continuing to deny the sexual assault, demonstrates a serious lack of insight into the inappropriateness of his conduct[24];
    4. (d)
      in addition to cancellation of his registration, in written submissions the applicant contended the Tribunal should also disqualify the respondent from applying for registration as medical practitioner for a significant period in the order of 4-6 years from the date of order; and
    5. (e)
      in oral submissions the applicant accepted that the authorities did not support the headline number of six years, but continued to contend that a period of four years from the date of the order was appropriate.
  2. [26]
    The respondent submits that a period of disqualification ought to be no more than a further 12 months in written submissions, in oral submissions accepting that should be up to perhaps an 18-month period from the date of the order.  This period would amount to a total time away from practice in excess of three years, and possibly up to four years (depending on when the Tribunal imposed the sanction). The respondent contended this period was an appropriate disqualification period because of:
    1. (a)
      the nature and seriousness of the conduct;
    2. (b)
      the evidence of remorse;
    3. (c)
      general and specific deterrence;
    4. (d)
      the otherwise good character and reputation of the respondent;
    5. (e)
      the inroads towards full rehabilitation made by the respondent; and
    6. (f)
      the delay, time away from practice and time practising under very onerous conditions.
  3. [27]
    The respondent, whilst accepting his conduct constitutes professional misconduct, contends that he is a fit and proper person to hold registration as he stands to be judged today before the Tribunal. This is primarily because of the opinion expressed by Dr New and the affidavit evidence in support of the respondent, but also his subsequent work in the time which has passed.  Having said that, the respondent accepts that the nature of the conduct means a cancellation is warranted to achieve the purposes of the disciplinary proceedings[25].
  4. [28]
    The respondent accepts the conduct the subject of Allegations 1 and 2 is serious. He points out that he has already been punished by the criminal justice system and the immediate action which has been taken against him.  He accepts that it is still necessary to punish to achieve the protective objectives of the disciplinary proceedings, but the Tribunal should take into account the penalties he has already been subject to.
  5. [29]
    The respondent also submits that features of the conduct moderates its seriousness from a risk perspective:
    1. (a)
      in respect of the first allegation, it was brief and related to a single patient. It was isolated and aberrant conduct.  There is no disciplinary history before the Tribunal of previous or subsequent similar conduct which would suggest the conduct is part of a pattern of behaviour;
    2. (b)
      in respect of the second allegation, that conduct relates directly to his substance abuse disorder. Had he not developed the disorder he would not have engaged in the conduct.  This reduces culpability and the appropriateness of the respondent as a vehicle for general and specific deterrence. Further, if the disorder is in remission, then the risk of the conduct occurring again is reduced and therefore the risk to the public is reduced; and
    3. (c)
      in respect of the conduct giving rise to allegation 3 there was no attempt to hide the convictions, and as already noted in these reasons the Health Ombudsman accepts there was no intentional dishonesty.
  6. [30]
    As for remorse, the respondent accepts:
    1. (a)
      in respect of allegation one, that maintaining his innocence means it is not possible to demonstrate remorse. He submits however the evidence supports that he:
      1. appreciates the consequences and seriousness of his conviction, which includes the public perception of him because of his conviction and the incompatible nature of such conduct and practice as a medical doctor;
      2. has accepted that any future practice will not permit unsupervised access to female patients; and
      3. has conducted the disciplinary matter in a way that ensures the patient is not cross-examined or put to further unnecessary stress.
    2. (b)
      as to allegation two he has demonstrated remorse by his guilty pleas and his engagement in rehabilitation; and
    3. (c)
      the same is true in respect of his approach to allegation three.
  7. [31]
    The respondent contends that general and specific deterrence is achieved by the reprimand, cancellation of his registration and the prohibition period of 12 to 18 months from today and any further disqualification period would be purely punitive.
  8. [32]
    The respondent contends he is otherwise of good character which is supported by:
    1. (a)
      affidavit material which I have already referred to in these reasons; and
    2. (b)
      Dr New’s opinion that his insight in respect of his ethical obligations and his willingness to comply with them is not impaired and that the respondent satisfies expected professional standards.
  9. [33]
    Turning to rehabilitation:
    1. (a)
      the respondent points out he ceased using the relevant mediations soon after he was charged and he has not since used them.  He has also engaged with Dr New in a “very satisfactory manner” and started new employment;
    2. (b)
      when he was permitted to practice, post offending, he did so ethically;
    3. (c)
      since being unable to work as a doctor, the respondent points to the fact he has engaged in alternative employment as a driver. This represents a significant reduction in his status, which is also a reminder of his conduct and would deter any contemplation of future conduct. It also demonstrates a commitment to rehabilitation because of the efforts he’s making to promote his family’s wellbeing; and
    4. (d)
      he has completed further education, which demonstrates commitment to rehabilitation.
  10. [34]
    The respondent makes some brief submissions as to delay and time away from practice and practicing under very onerous conditions which have largely been traversed by the matters I already identified. The respondent submits that the penalty that he contends for is one which is supported by the yardstick cases referred to by the applicant, a number of which he notes fall to be assessed on their own facts and circumstances.

Discussion and sanction

  1. [35]
    As already noted, the Tribunal is satisfied the respondent’s conduct contained in the agreed facts in respect of the Allegations constitutes professional misconduct as defined in section 5 of the National Law.
  2. [36]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive.  It has, however, been recognised that an order may necessarily have a punitive effect[26].  The Tribunal must regard the health and safety of the public as paramount[27]. In Craig v Medical Practitioners Board [28] at [48] the Court observed:

“The public may be protected by preventing a person from practicing a profession, by limiting the right of practice or by making it clear that certain conduct is not acceptable.”

  1. [37]
    The applicant has helpfully referred the Tribunal to a number of authorities in respect of doctors who have engaged in sexual misconduct with their patients. 
  2. [38]
    The first of those, Medical Board of Australia v Lee (Review and Regulations)[29], ultimately, the applicant accepted, could fairly be distinguished because the offending was objectively much more serious and it should be put to one side.  That, to the Tribunal’s mind, was a proper concession.
  3. [39]
    Turning then to the Medical Board of Australia v Thomas (Review and Regulation) (Corrected)[30], the practitioner there was a 71-year-old formerly registered psychiatrist who sexually assaulted a 44-year-old patient (who he had treated for bipolar for approximately 4 years). He assaulted her in his consulting suite at a private hospital in Melbourne in 2015. He was 66-years of age at the time of the assault. He had no other convictions. The patient had advised Dr Thomas that she had glandular fever, a breast cancer scare and had a sore stomach. The sexual assault involved Dr Thomas, in a single consultation:
    1. (a)
      lifting up the front of the patient’s top and touching her stomach area;
    2. (b)
      fondling her breasts and pulling her nipples out from her bra and top;
    3. (c)
      telling the patient he wanted to suck her nipples;
    4. (d)
      touching her breasts;
    5. (e)
      rubbing her back, the small of her back and her buttocks;
    6. (f)
      requesting the patient to spread her legs and show him how she masturbated and that he wanted to see her clitoris;
    7. (g)
      touching the patient’s vaginal area over her pants and moving his hands to grab her breasts under her clothing and trying to remove her bra; and
    8. (h)
      attempting to kiss the patient and advising her that he wanted to see if she would experience vaginismus.
  4. [40]
    The patient reported the matter soon after the incident. Dr Thomas initially denied any wrongdoing and there was a committal with cross-examination. He ultimately pleaded guilty to 1 count of sexual assault and was sentenced to 2 years imprisonment with a non-parole period of 14 months. His registration was suspended in June 2017 and he voluntarily surrendered his registration in November 2018. There was a suggestion within the authority that the agreed position on sanction which was that Dr Thomas be disqualified from applying for registration for five years from the date of the order, was based on a misunderstanding in that Dr Thomas understood that that would include the period of time which he’d already served as part of the sanction, whilst the regulator did not. Ultimately, the Tribunal decided it was not necessary to determine that, because Dr Thomas had declared his intention not to practice again and the Tribunal observed that his age and his health may make a return to practice unlikely in any event.[31] The Tribunal regarded general deterrence, rather than specific deterrence, as particularly important in this case.[32]  It weighed his age, his health and his past behaviour and the fact that agreement had been reached against the facts that his conduct involved grooming prior to the sexual assault, that the patient was a very vulnerable patient and that their professional relationship was longstanding, Dr Thomas was aware of her mental health conditions and the likelihood that his misconduct would exacerbate her problems. Ultimately, the Tribunal disqualified the practitioner from applying for registration for 5 years from the date of order, taking into account the time that he’d already not been in practice, which was a little less than four years.  The effective suspension was in the order of nine years.  The Tribunal regards the nature of the assault by Dr Thomas as more protracted, and the anterior circumstances of the grooming suggest that overall the conduct is more serious than the conduct presently before the Tribunal in terms of the sexual assault.  It makes those observations noting the applicant’s submissions that there was no skin-on-skin contact with the vaginal area as has occurred in this case.  The Tribunal also is somewhat troubled by the fact that the sanction period was an agreed period, but it appears from the report that there was a misunderstanding between the parties as to how that would be calculated, and thinks it is appropriate in those circumstances to proceed on the basis that the total period of nine years there is an outlier period.
  5. [41]
    The next authority is the Health Care Complaints Commission v Ng[33]. In terms of the authorities which were cited, the Health Ombudsman accepted that this authority, the authority in the matter of Health Care Complaints Commissioner v King[34], the authority in Medical Board of Australia v Cukier[35] and the authority in Health Care Complaints Commission v Priyamanna No 2[36] were not authorities which supported the range which it contended for in terms of sanction.  The Tribunal accepts that is an appropriate concession.  They are all cases which turn on their particular circumstances. The Tribunal notes that the cases indicate a sanction range of in the order of somewhere between 12 months and two years for offending which would seem to be objectively more serious, if assessed in broad terms, than the offending here, in terms of the sexual assault.
  6. [42]
    Prior to the hearing the applicant also provided the Tribunal with the decision of Health Ombudsman v Chang[37].  The Chinese Medicine Practitioner respondent was employed as a massage therapist and acupuncturist and he treated a female patient who had attended for a massage.  In that case the Tribunal determined the respondent had sexually assaulted the patient after reviewing all the evidence including the evidence given by the patient and the respondent at a criminal trial. The assault involved his hand, during the massage, making momentary contact with the patient’s clitoris, then later making further contact, rubbing it for a few seconds then inserting a finger into her vagina and moving it in and out for about 10 seconds. She told him to stop twice and after being told the second time, he did.  She sent a text to her partner from the consulting room, asking him to come to her and made a complaint to the police later that day. The respondent was acquitted of a charge of rape by a jury.  Applying the Briginshaw[38] standard however, the Tribunal rejected the account of the respondent which it found implausible, found the patient’s account had support in other evidence and held that the respondent did sexually assault the complainant as alleged.  The respondent admitted he had failed to report to the regulator that he had been charged with an offence.
  7. [43]
    The Tribunal observed this was a very serious matter and this was a serious example of a sexual assault, involving penetration. It found there was no evidence of any insight into any wrongfulness of the conduct or evidence of remorse.  The respondent had not been registered since November 2019 and been away from his profession for about four and a quarter years. He did not appear before the Tribunal.  The Tribunal determined an additional disqualification period of five years from the date of the order was reasonable. (Because he was not registered, no order for cancellation of his registration could follow).
  8. [44]
    The Tribunal observes that the objective seriousness of the assault in Chang, involving digital penetration for a period of 10 seconds, is offending which is more serious than that which comprised the assault here.
  9. [45]
    The applicant provided the Tribunal with the decisions of the Health Ombudsman v Wrede[39] and Health Ombudsman v NML[40] as authorities in respect of consideration of the conduct in allegation 2.  The Tribunal’s had reference to those authorities and found them of assistance.  It’s not necessary to rehearse the contents of them here.
  10. [46]
    The factors for the Tribunal to consider when determining what sanction is appropriate include[41]:
    1. (a)
      the nature and seriousness of the conduct;
    2. (b)
      whether the practitioner pleaded guilty or whether there is evidence of contrition or remorse;
    3. (c)
      what needs for specific or general deterrence arise;
    4. (d)
      whether there have been other disciplinary findings before or after the conduct in question;
    5. (e)
      evidence of character;
    6. (f)
      evidence of rehabilitation;
    7. (g)
      whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and
    8. (h)
      any other mitigating factors, such as medical or psychological evidence, family or other personal circumstances.
  11. [47]
    The likelihood of recidivism, or an assessment of the ongoing risk posed by the practitioner is also relevant[42].
  12. [48]
    General deterrence is always an important aspect of disciplinary proceedings such as this because of the need to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for and confidence in what is properly to be considered a noble and essential profession.  The Tribunal accepts that where there is a causal link between mental illness and impugned conduct, the relevance of general deterrence may be moderated to some degree although not eliminated [43]. 
  13. [49]
    Personal matters such as shame, personal ordeal and financial difficulty are of little relevance save in so far as they contribute to specific deterrence of the practitioner[44].
  14. [50]
    In respect of the sexual assault the subject of allegation one the Tribunal finds:
    1. (a)
      there was a significant breach of trust and the patient was vulnerable, having English as a second language and being younger than the respondent. Further, the offending had a significant effect, emotionally, on the patient;
    2. (b)
      the conduct occurred in the course of the respondent’s practice;
    3. (c)
      the description of the offending as set out by the sentencing judge as being somewhat spontaneous, and also that it ceased in circumstances where the patient pulled away, not that the respondent desisted;
    4. (d)
      the respondent has been convicted of sexual assault, served actual time in prison and has served a suspended sentence;
    5. (e)
      the respondent has deposed to understanding the consequence of the conviction for sexual assault in terms of his ability to return to practice as a doctor;
    6. (f)
      as was properly accepted by the applicant, the conduct is isolated conduct. There is nothing prior to and nothing subsequent to it, and in circumstances when the respondent did work subsequent to the offending, he was able to work within the conditions which were imposed;
    7. (g)
      whilst the respondent was not remorseful, in that he continues to maintain his innocence, Dr New expresses the opinion that the risk of further sexual offending is no greater than for other practitioners, the respondent has a much more heightened appreciation of the behaviours which could give rise to doubt in his consultations with patients and has expressed an intention to practice in a manner which takes these things into account.  Dr New identifies, and the Tribunal accepts, that there is no history of grooming or other dishonest or antisocial behaviour and that his remorse is genuine and not consistent with a sociopathic personality style; and
    8. (h)
      the respondent has cooperated in the conduct of the proceedings with the preparation of agreed facts and, generally, an agreed position in respect of sanction.
  15. [51]
    In respect of the offending in relation to the fraud involving the use of the prescriptions, the Tribunal finds:
    1. (a)
      that the conduct is objectively serious;
    2. (b)
      it has an explanation in the health condition from which the respondent was suffering, which caused him, once over the counter medications were not adequate, to start falsifying scripts in the name of patients, which gave rise to a rapid Substance Abuse Disorder. As such, a level of moderation to be applied to the aspect of general deterrence;
    3. (c)
      Dr New’s opinion is that the likelihood of a recurrence of the Substance Abuse Disorder is so limited as to not require any special restrictions and that the evidence supports the respondent’s position that he has not taken opiod medication since November 2018 and further, that the underlying physical condition for which he perpetrated the frauds to obtain the  medication has resolved itself;
    4. (d)
      the respondent’s actions involved abuse of patient‘s’ details to commit the offending; and
    5. (e)
      the respondent’s immediate admissions to the offending and his pleas of guilty in court proceedings and his evident steps towards rehabilitation all tell in his favour.
  16. [52]
    The respondent has no history prior to the conduct the subject of this referral and, to that extent, was previously a person of good character.  That conclusion is supported by the affidavit material filed in support of him.  Whilst it’s not seeking to trivialise the conduct, on all of the material before the Tribunal, the Tribunal finds that the sexual assault is an isolated incident, which may properly be described in all the circumstances as out of character. 
  17. [53]
    The interests of general deterrence will be served by the order for cancellation together with a further disqualification period.  They will also serve for further specific deterrence, for the respondent, who has already experienced specific deterrence through the criminal processes, the limitations on his practicing ability when he could practice and the knowledge amongst his community of his actions.
  18. [54]
    The Tribunal has endeavoured to meet the importance of maintaining standards and that that is met by the sanction, whilst balancing the need that the sanction imposed should not be unduly punitive. 
  19. [55]
    Weighing all these matters the Tribunal finds:
    1. (a)
      the respondent is a person who is fit and proper to practice as at the time of the hearing;
    2. (b)
      it is, however, appropriate, as the respondent has acknowledged, that his registration be cancelled.  This is to give effect to the need to make it clear that the respondent’s conduct which is the subject of the referral is utterly unacceptable.  By reason of the cancellation of the respondent’s registration, the respondent will be required to satisfy the Board that he is a fit and proper person for practice before he can regain registration. As such, his return to practice is not automatic or guaranteed; and
    3. (c)
      a further disqualification period of 2 years is an appropriate sanction given the punishment which the respondent has already served through the criminal processes, the cancellation of his registration, the reprimand which the parties agree and the Tribunal has determined it will impose and the time the respondent has spent not working as a doctor.  Specifically, in that regard, the Tribunal expressly notes that there has been 1 year and 4 months based on actions taken to suspend the respondent’s ability to practice as a doctor to this point.  The Tribunal has made a further broad-brush allowance of in the order of eight months, given the other periods of time that the respondent has not worked as a doctor.  In so doing, the Tribunal expressly notes that it has not taken into account any period of the time that the respondent served in prison in moderating that figure.
  20. [56]
    As indicated the Tribunal will otherwise make orders for a reprimand and that each party pay their own costs, which are agreed.
  21. [57]
    The total effective sanction period, therefore, is intended to reflect a period of 4 years, taking into account the time which the respondent has already spent, plus the further period of 2 years of today. 
  22. [58]
    The Tribunal would like to record the very significant assistance from the assessors on questions of fact and thank them for their thoughtful engagement and assistance on questions of fact and assistance throughout the hearing process.

Orders

  1. [59]
    The Tribunal makes the following order(s);
  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2009 (Qld), in respect of each of the allegations, the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2009 (Qld), the respondent is reprimanded.
  3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2009 (Qld), the respondent’s registration is cancelled.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2009 (Qld), the respondent is disqualified from applying for registration for a period of 2 years from the date of order.
  5. Each party bear its own costs of the proceedings.

Footnotes

[1]  [7] Agreed Statement of Facts (ASOF).

[2]  Hearing Brief p 36.

[3]  Dates taken from the statement of facts for the Magistrate’s Court proceeding: hearing brief pages 41 -50.

[4] Health Ombudsman v Haririchian [2021] QCA 141.

[5]  The notation of the specific courses is contained in EX RH12 at Hearing Brief pp 173 – 174.

[6]  [2021] QCA 141.

[7]  Dr Ati Vaid at [4].

[8]  Dr Dip Chand at [3] and [4].

[9]  Dr Niraj Shekhawatia at [10].

[10]  Dr Theresa Armstrong at [3].

[11]  Naz Hudda at [3] and Shamim Hudda at [3]; they operated the pharmacy in the area where the respondent first practiced for a number of years.

[12]  Steven Dahl at [3] – [4].

[13]  Dr Ati Vaid at [6], Dr Dip Chand at [7], Dr Farhshid Homayouni at [5], Naz Hudda at [5] and Shamim Hudda at [5], Steven Dahl at [8], Dr Theresa Armstrong at [6] in respect of the sexual misconduct.

[14]  Karishma Shandil at [3].

[15]  Victoria Rae at [3], [6]. 

[16]  Karishma Shandil at [6], Natalie Petrakis at [4]. 

[17]  Melika Adel at [5], Mogan Najarzadeh at [6]. 

[18]  Miranda Yousefipour at [4].

[19]  Melika Adel at [10], Miranda Yousefipour at [6], Mogan Najarzadeh at [9]. 

[20]  [2017] QCAT 431 at 7, [26] per Sheridan DCJ Deputy President.

[21]  [2019] QCAT 218 at 6, [21] per Allen QC DCJ, Deputy President.

[22]  [2020] QCAT 363 at 5, [15] per Judicial Member McGill QC.

[23] In Legal Services Commission v McLeod [2020] QCAT 371 it was accepted by the applicant that there was a sufficient causal connexion between the respondent's depressive disorder and the respondent's misconduct [33]. Judicial Member Peter Lyons QC did not determine that general deterrence was eliminated as a consideration when determining sanction. Instead, after setting out at [30] that the main purpose of disciplinary proceedings is to protect members of the public from misconduct by lawyers and associated with this the need to safeguard the reputation of the legal profession, he determined that general deterrence is, in this context, a matter of some importance. However, he went on to state that general deterrence may be "sensibly moderated" where mental disorder has contributed to a lawyer's misconduct.

[24] Health Ombudsman v Arora [2019] QCAT 200 at [27].

[25] Craig v Medical Board of South Australia (2001) 79 SASR 545 at 556, [57].

[26] Medical Board of Australia v Cukier [2017] VCAT 109 [88].

[27]  Section 4(2)(c) Health Ombudsman Act 2013.

[28]  [2001] SASC 169.

[29]  [2020] VCAT 568.

[30]  [2021] VCAT 229.

[31]  at [36].

[32]  at [37].

[33]  [2015] NSWCATOD 139.

[34]  [2013] NSWMT 9.

[35]  [2017] VCAT 109.

[36]  [2016] NSWCATOD 3.

[37]  [2022] QCAT 58.

[38] Briginshaw v Briginshaw (1938) 60 CLR 336.

[39]  [2019] QCAT 356.

[40]  [2018] QCAT 164.

[41] Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822 at [43].

[42] Medical Board of Australia v Lee (Review and Regulations) [2020] VCAT 568 at [26(f)].

[43]  McLeod op cit.

[44] Medical Board of Australia v Lee (Review and Regulations) [2020] VCAT 568 at [26(e)] and the authorities cited therein; The Health Ombudsman v Jolley [2019] QCAT 173 at [77].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Harirchian

  • Shortened Case Name:

    Health Ombudsman v Harirchian

  • MNC:

    [2022] QCAT 143

  • Court:

    QCAT

  • Judge(s):

    Judge Dann

  • Date:

    09 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
2 citations
Jump To
Cite 1 - (2001) 79 SASR 545
Cite 2 - (2001) 79 SASR 545
Craig v Medical Board of South Australia [2001] SASC 169
1 citation
Jump To
Cite 1 - [2001] SASC 169
Health Care Complaints Commission v King [2013] NSWMT 9
2 citations
Jump To
Cite 1 - [2013] NSWMT 9
Cite 2 - [2013] NSWMT 9
Health Care Complaints Commission v NG [2015] NSWCATOD 139
2 citations
Jump To
Cite 1 - [2015] NSWCATOD 139
Cite 2 - [2015] NSWCATOD 139
Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3
2 citations
Jump To
Cite 1 - [2016] NSWCATOD 3
Cite 2 - [2016] NSWCATOD 3
Health Ombudsman v Arora [2019] QCAT 200
2 citations
Jump To
Cite 1 - [2019] QCAT 200
Cite 2 - [2019] QCAT 200
Health Ombudsman v Barber [2017] QCAT 431
2 citations
Jump To
Cite 1 - [2017] QCAT 431
Cite 2 - [2017] QCAT 431
Health Ombudsman v Brown [2019] QCAT 218
2 citations
Jump To
Cite 1 - [2019] QCAT 218
Cite 2 - [2019] QCAT 218
Health Ombudsman v Chang [2022] QCAT 58
2 citations
Jump To
Cite 1 - [2022] QCAT 58
Cite 2 - [2022] QCAT 58
Health Ombudsman v Harirchian [2021] QCA 141
3 citations
Jump To
Cite 1 - [2021] QCA 141
Cite 2 - [2021] QCA 141
Cite 3 - [2021] QCA 141
Health Ombudsman v Vale [2020] QCAT 363
2 citations
Jump To
Cite 1 - [2020] QCAT 363
Cite 2 - [2020] QCAT 363
Health Ombudsman v Wrede [2019] QCAT 356
2 citations
Jump To
Cite 1 - [2019] QCAT 356
Cite 2 - [2019] QCAT 356
Legal Services Commissioner v McLeod [2020] QCAT 371
2 citations
Jump To
Cite 1 - [2020] QCAT 371
Cite 2 - [2020] QCAT 371
Medical Board of Australia v Cukier [2017] VCAT 109
3 citations
Jump To
Cite 1 - [2017] VCAT 109
Cite 2 - [2017] VCAT 109
Cite 3 - [2017] VCAT 109
Medical Board of Australia v Griffiths [2017] VCAT 822
2 citations
Jump To
Cite 1 - [2017] VCAT 822
Cite 2 - [2017] VCAT 822
Medical Board of Australia v Lee (Review and Regulation) [2020] VCAT 568
4 citations
Jump To
Cite 1 - [2020] VCAT 568
Cite 2 - [2020] VCAT 568
Cite 3 - [2020] VCAT 568
Cite 4 - [2020] VCAT 568
Medical Board of Australia v Thomas [2021] VCAT 229
2 citations
Jump To
Cite 1 - [2021] VCAT 229
Cite 2 - [2021] VCAT 229
The Health Ombudsman v Jolley [2019] QCAT 173
2 citations
Jump To
Cite 1 - [2019] QCAT 173
Cite 2 - [2019] QCAT 173
The Health Ombudsman v NLM [2018] QCAT 164
2 citations
Jump To
Cite 1 - [2018] QCAT 164
Cite 2 - [2018] QCAT 164

Cases Citing

Case NameFull CitationFrequency
Chinese Medicine Board of Australia v Tang [2024] QCAT 2022 citations
Health Ombudsman v Than [2023] QCAT 4782 citations
1

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