Health Ombudsman v Han[2022] QCAT 440

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   The Referral by the Director of Proceedings on behalf of the Health Ombudsman (the applicant), filed on the 14^th of December 2021, concerns the respondent, who was a registered nurse when he sexually assaulted and digitally raped a female assistant in nursing on the 18th of October 2019. The offences occurred after the respondent had completed a day shift as a registered nurse at an aged care facility in Brisbane. During the day he had supervised the young female nursing assistant who became the complainant in relation to the sexual offending. Full particulars of the respondent’s criminal conduct are set out in the amended referral filed on the 19^th of August 2022.
2. [2]
   The respondent was born on the 18^th of November 1990, so he is currently 32 years of age and was 29 at the time of the offending.
3. [3]
   After the shift on the 18^th of October 2019, he offered to drive the young complainant to the train station stop. They sat talking in the car, as a result of which she missed her train, and he then drove her to another area, where he committed some of the offences, including the most serious offence of rape. She pleaded with him to return her to the train station, which he did, but as she attempted to leave the car, he sexually assaulted her again on two occasions. She made a formal complaint to police that evening. When he was interviewed, he admitted kissing her and touching her, but alleged she initiated sexual contact with him.
4. [4]
   He maintained this position and went to trial on three counts of sexual assault and one count of rape. The trial proceeded over eight days in September 2021. He was convicted by a jury of all four counts. The offending, and no doubt the stress of a trial and being cross-examined, has had a dramatic adverse effect on the complainant, as evidenced in her victim impact statement tendered to the judge.
5. [5]
   In sentencing the respondent to an overall term of two and a-half years, his Honour Judge Rackemann said:

You offended against a young woman who was only 20 years of age at the time. She was significantly younger than you, and she was in your vehicle. Your offending was opportunistic, but it was also persistent. Your offending against her continued despite her protest, which made it clear that she was saying “No”. The offending was somewhat brazen, occurring in a public area in the afternoon…

You have shown no remorse. The matter went to trial and, consequently, the complainant was cross-examined and, indeed, cross-examined at some length.

Your offending on her has had obvious consequences. I have before me a victim impact statement which speaks of the sorts of impacts which offending of this kind can have on vulnerable young women. It speaks of the emotional impact upon the complainant and upon her family. It speaks of the effect it has had on how she sees herself, as well as others. It details self-loathing that the offending has triggered and self-harming that she has taken to.^[1]

6. [6]
   The respondent’s employer undertook an internal investigation, which led to the termination of his employment on the 21^st of November 2019. He was charged with the offences by police on the 31^st of October 2019.
7. [7]
   The Office of the Health Ombudsman (‘OHO’) received notification from his former employer on the 31^st of March 2020. It conducted an investigation and took immediate action on the 30^th of April 2020 which prohibited the respondent from having any contact with female patients.
8. [8]
   The respondent’s registration lapsed on the 30^th of June 2020, after he failed to renew his registration on the 31^st of May 2020. Notwithstanding that he is no longer registered, the Tribunal has jurisdiction to deal with him as a result of section 21 of the Health Ombudsman Act 2013 (‘the Act’). As a result of section 107(4)(a) of the Act, if the Tribunal decides to cancel the respondent’s registration, it can disqualify him for a specified period or indefinitely.
9. [9]
   The respondent has not participated in these proceedings. He is still serving the term of imprisonment, and the Tribunal took the trouble of scheduling the hearing for 12.30 today so that he could participate by video link. The Tribunal has been informed by him that he does not wish to participate in the hearing, and yesterday, in accordance with the affidavit filed by Mr Price, he was served with further documents, at which time he advised the relevant person in sentence management at the Woodford Correctional Centre that he did not intend to participate in the hearing today. As a consequence, the Tribunal has proceeded in his absence. The Tribunal is satisfied that he is aware of the hearing today, and he has chosen not to appear. This is consistent with his attitude to the disciplinary proceedings throughout. The tribunal is also satisfied that the respondent has been served with all the material in the hearing brief and with the material filed by Mr Price on behalf of the applicant yesterday.

Characterisation

10. [10]
    Professional misconduct of a registered health practitioner, as defined in section 5 of the National Law, means conduct:

1. (a)
   that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and/or

1. (b)
   that amounts to more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and/or

1. (c)
   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.^[2]

11. [11]
    Unprofessional conduct of a registered health practitioner means conduct that is of a lesser standard than that which might reasonably expected of a registered health practitioner by the public or the practitioner’s professional peers.^[3]
12. [12]
    The respondent’s sexual assault and rape of a 20-year-old female colleague constituted a gross abuse of trust, a gross violation of the complainant woman, and was completely inconsistent with his professional and ethical obligations as a registered nurse. It was conduct which demonstrates that he is unfit to practice nursing, and it was conduct that fell significantly below the standard expected of a registered nurse.
13. [13]
    The public is entitled to expect that a registered nurse will not exploit a colleague for his own sexual gratification, and such conduct is clearly inconsistent with the respondent being a fit and proper person to hold registration in the profession of nursing.^[4]
14. [14]
    The respondent’s conduct also offends many of the principles of the Code of Conduct for Nurses of Australia (‘the Code of Conduct’), to which he was subject at the relevant time, relating to principles that nurses are required to comply with the law, to behave ethically, and to be professionally and respectful in their dealings with other people, including colleagues.
15. [15]
    The Tribunal is satisfied to the requisite standard that the respondent’s conduct amounts to professional misconduct as defined in all three limbs of the definition in section 5 of the National Law.

Sanction

16. [16]
    The main guiding principle is that the health and safety of the public are paramount. The purpose of disciplinary proceedings is to protect, not to punish.
17. [17]
    A sanction in disciplinary proceedings is designed not only as a specific deterrent to the relevant practitioner, but also as a general deterrent to practitioners, protecting the public from those who may consider behaving in a similar way. It also maintains public confidence in health professionals by promoting proper ethical and professional standards.
18. [18]
    When determining sanction, the Tribunal will take into account the facts of each individual case. It may consider factors including the nature and seriousness of the practitioner’s conduct; insight and remorse shown by the practitioner; the need for specific and general deterrence; any evidence of steps taken by the practitioner to mitigate the risk of reoccurrence of the conduct, which is relevant to both insight and the Tribunal’s assessment of future risk; mitigating factors such as evidence which may give context to the conduct, for example, mental health issues; and other matters, including past disciplinary history, police history, character evidence and periods of preclusion and/or non-practice from the profession, and cooperation during the disciplinary proceeding.
19. [19]
    The respondent’s conduct was of a most serious kind, involving the violation of a young colleague who was entitled to trust him as an experienced health practitioner. He has demonstrated no remorse, or insight into or remorse for his conduct. On the contrary, from the outset he deflected responsibility for what happened to his victim, and then subjected her to the added humiliation and distress of being cross-examination over an extended period of time before a jury. As noted earlier, it has had a very significant and adverse effect on all aspects of this young woman’s life. He has not participated in these proceedings and has not cooperated in any way.
20. [20]
    In those circumstances, I am satisfied that he presents as an ongoing risk to the community. General deterrence and specific deterrence have a role to play, particularly the latter, so as to emphasise the serious nature of the conduct and to impose sanctions that are designed to both discourage other health practitioners from engaging in such conduct but also to emphasise to the community the importance of the nursing profession to the health and safety of the public, as it stands at the apex of our health system.
21. [21]
    As the applicant notes, not surprisingly, there are no directly analogous comparators, as this sort of behaviour by registered health practitioners is rare.
22. [22]
    In Health Ombudsman v Hoddle [2022] QCAT 142, the respondent was an osteopath. He sexually assaulted and raped a long-term female patient digitally by putting three fingers into her vagina without her consent. He also performed oral sex on her without her consent. The respondent denied his criminal conduct and expressed no remorse or insight. The Tribunal found the respondent’s conduct constituted professional misconduct, reprimanded him, cancelled his registration, and disqualified him from applying for registration for a further eight years.
23. [23]
    Pharmacy Board of Australia v Tan [2016] VCAT 1653 involved a provisionally registered pharmacist who committed an act of digital rape on a 22-year-old female client of the pharmacy in the context of dispensing medication for a skin rash. Tan was suffering from an adjustment disorder at the time of the conduct. Although he initially tried to evade police, he ultimately pleaded guilty and was convicted of rape and sentenced to six months imprisonment and to a three-year community correction order. In subsequent disciplinary proceedings, he was found guilty of professional misconduct, and he was reprimanded. His provisional registration was cancelled, and he was disqualified from applying for registration for a period of four years.

The Tribunal remarked:

The facts disclose a gross and substantial breach of trust. The patient was young, and Mr Tan used his trusted position to commit the offence. There was an enormous power imbalance between Mr Tan and the patient. It is clear from the facts that the patient, whilst knowing the conduct was wrong, was completely disempowered to do anything about it. Mr Tan knowingly exploited that power imbalance. He did so for his own sexual gratification, opportunistically taking advantage of his role as a pharmacist.^[5]

24. [24]
    Although I regard this case as more serious than Tan and more in line with the case of Hoddle, the same observation that the Tribunal made in Tan is apt here, where the victim of the sexual offending was a young colleague under his direct supervision during work hours, and who was under his power and control during the offending.
25. [25]
    I agree with the submission made by the applicant that it is necessary in this case to prohibit the respondent from providing any health service until he obtains registration as a health practitioner. I agree with the submission made on behalf of the applicant that given the respondent has the necessary skills to easily transition into providing health care in the unregistered sphere, and has failed to demonstrate any remorse, nor any commitment to taking positive rehabilitative steps, he is unfit to provide any form of health care until he obtains registration as a health practitioner under the National Law.

Orders

26. [26]
    In those circumstance, the following findings and orders are made by the Tribunal:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has engaged in professional misconduct.
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a nurse for a period of eight years.
4. Pursuant to section 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service until he obtains registration as a health practitioner under the National Law.
5. No order as to costs.