Health Ombudsman v Chang[2022] QCAT 58

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) (“the Act”) s 103(1)(a), s 104.  Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Mr M Crain, Ms M Macdonald and Ms C Narayan in accordance with the Act.^[1] 
2. [2]
   The respondent was at the relevant time a registered Chinese Medicine Practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, in that on a particular occasion he sexually assaulted a patient, which was outside the boundaries of a normal therapeutic relationship.  As well, it is alleged that the respondent failed to notify the Chinese Medical Practitioner Board that he had been charged with a criminal offence, as required by the National Law s 130(1).
3. [3]
   The Tribunal has been provided by the applicant with material about the matter, and submissions in writing.  The respondent is legally represented, and has consented to the applicant’s bundle of material being placed before the Tribunal, but did not take any active part in the proceeding.  In a letter from his solicitors last year, he denied the sexual assault. 

Background

4. [4]
   The respondent was born in 1979 and is now 42 years old.  He had been registered as a Chinese Medicine Practitioner since 2012.^[2]  On 7 October 2017, while he was so registered, he was employed as a massage therapist and acupuncturist at a particular practice in a suburban shopping centre, and there treated a particular female patient, who had attended for a massage. 
5. [5]
   The patient says that, during the massage, at one stage the respondent’s hand made momentary contact with her clitoris, later made further contact, rubbing it for a few seconds, and he then inserted a finger into her vagina and moved it in and out for about ten seconds.  She told him to stop as soon as he inserted his finger, and after she repeated that, he stopped.  She told him to get out and he left the room, and she texted for her partner to come to the shopping centre.  She then went to the office of the centre management, and asked them to call the police, as she had been sexually assaulted.  She made a complaint to police about the respondent’s conduct. 
6. [6]
   Later on 7 October 2017, police charged the respondent with one count of rape.  The respondent did not report that he had been charged with a criminal office to the Chinese Medical Practitioner Board, within the period required by the National Law, or at all.  However, on 1 December 2017 he applied for non-practising registration.  The applicant was made aware of the charge, and on 30 January 2018 made an interim prohibition order prohibiting the respondent from providing any health services.^[3]  On 26 September 2019, that was changed to an order prohibiting the respondent from treating any female patient.^[4]  That remains in force.  The respondent did not renew his registration in 2019, and he has not been registered since 30 November 2019.  On 3 December 2019 the Tribunal made a non-publication order in relation to the identity of the patients of the respondent or their family members.  That order remains in place until further order.  
7. [7]
   On 25 February 2019 the respondent went to trial in the District Court on the charge of rape.  On 28 February 2019, the jury found the respondent not guilty of the charge, and he was discharged.  The referral was filed in the Tribunal on 28 November 2019.  By a response, signed by the respondent on 18 June 2020, the respondent admitted the allegations in paragraphs 5 to 10 of the attachment to the referral, which included the allegation of sexual assault, but in an amended response prepared by solicitors and signed on 9 July 2021, the respondent admitted paragraphs 1, 2, 5, 8, 9 and 10 of the particulars, and denied paragraphs 3 and 4.  As to paragraph 6, covering the allegation of sexual assault, the respondent admitted paragraphs 6(a), 6(b) in part, 6(j), 6(k) and 6(l), did not admit paragraphs 6(b) in part and 6(i), and denied paragraphs 6(b) (the balance), 6(c), 6(d), 6(e), 6(f), 6(g), 6(h).  The effect of this was to deny the allegations of sexual assault.  I will not have regard to the earlier admission. 

The sexual assault

8. [8]
   The first issue is whether the Tribunal is satisfied that the allegation of sexual assault has been made out.  The material before the Tribunal includes witness statements provided to police, an affidavit by the complainant,^[5] and the transcript of the trial.^[6]  I have considered all of the evidence, the essence of which is as follows.  The formal statement made to police by the complainant was made the same day, 7 October 2017.  That statement described the massage, which started in a similar way to a previous massage given to her by the respondent on 30 September 2017.  At one stage, while she was lying on her back, the respondent was massaging her right inner thigh for about two minutes.  At one point his right thumb brushed her clitoris, which she thought was a mistake, but he then put his thumb on her clitoris again and rubbed it for about ten seconds.  He then put one of his fingers into her vagina.  She said “Stop, I don’t want that”, but he moved his finger in and out a number of times.  She then told him to stop again and he withdrew his finger. 
9. [9]
   She said he offered an acupuncture massage then, but she told him to get out.  He said he was sorry, and that everything was going to be okay but she told him again to get out.  She had to say this a number of times, getting louder, until he finally left.  When he left she locked the door, dressed, and sent a message by her phone to her partner to come to the shops.  She went to the centre management office, where she said she had been sexually assaulted and needed the police.  They were called and attended.  She provided a short statement to one officer who wrote it in his notebook, and she signed it.  That officer described her as visibly upset, and she appeared to have been crying.^[7]  Then she went to a police station and provided a statement to a detective.  In her affidavit dated 10 August 2021 she confirmed the truth of that statement. 
10. [10]
    In oral evidence she omitted reference to the second time that he touched her clitoris, and rubbed it, although there was some disruption to the flow of her evidence at this point when an objection was taken and dealt with.^[8]  Under cross-examination she agreed that when she spoke to the police officer at the centre she had said that the respondent had said “I’m just releasing your inner tension” when he had his finger in her vagina: p 1-25.  This was not mentioned in her formal statement, because she said a lot had happened to her that day, and it was some hours later: p 1-28.  She was cross-examined about details of the course of the massage before the incident, which involved putting some differences from her account, and about the respondent’s version of what happened, which she denied.
11. [11]
    The respondent gave evidence at the trial, and had given a statement to police, in each case with the assistance of an interpreter.  He described the course of the massage in a way which in some respects differed from the account of the complainant, and claimed that she asked for treatment on her hip and her groin: p 2-23.  He had said he would not treat the latter.  He said at one stage when he was massaging her thigh he felt his fingers touch her underpants: p 2-24.  He then felt his hand being pulled, looked down, saw her pull her underpants aside with her right hand, and felt her pull his hand with her left hand to touch her private parts.^[9]  He said he pulled his hands away: p 2-28.  He then suggested he move on to a different part of the treatment, but she declined, and he left the room.  He denied the complainant’s account.  Nothing of real significance emerged on cross-examination, and he was not asked about any significant inconsistency with the version given in the recorded interview. 
12. [12]
    There was evidence from two witnesses, the partner of the complainant and a police officer who spoke to her, of her distressed condition when they saw her.  I am conscious of the limitations of such evidence, but consider that as far as it goes it provides some support for the complainant. 
13. [13]
    Vaginal swabs taken that day were found to contain a chemical substance present in each of two kinds of massage oil used at that practice: p 2-9.  The witness said it was also found in some moisturizing creams.  He was unable to say whether the body would secrete that substance naturally in the vagina as a result of consuming vegetable oil, but there was no evidence that that was possible.  On the face of it this provides some support for the complainant, as there was no explanation on the respondent’s account for the presence of massage oil in the high vagina. 
14. [14]
    Defence counsel in submissions referred to the inconsistencies in the account given to the first police officer, the statement to the police, and in the evidence in chief of the complainant, as discussed above.  He also submitted that the complainant’s reaction when she was first touched, closing her eyes and keeping them closed until after he had inserted his finger in her vagina,^[10] was inherently implausible.  I do not regard this as significant; there are no rules as to how a person behaves when exposed to a sexual assault, and reacting by freezing, as the complainant did initially here on her account, is by no means unusual.  It did initially strike me that the complainant had removed her bra when told to undress (p 1-21) but the respondent in evidence said that this is what he told her to do: p 2-18. 
15. [15]
    Counsel also referred to the evidence of another patient of the respondent, who had been given acupuncture by the respondent in another treatment room, apparently adjacent to the room with the complainant, and left there for forty-five minutes while he attended to the complainant.^[11]  She said that she did not hear anyone calling out, or any sounds of distress, from where she was during that period, although the complainant said she had raised her voice the second time when she told the respondent to stop, and that when she told him to get out several times, she raised her voice each time, and at the end it was a yell: p 1-9.  Some people’s voices carry better than others, and there was no evidence about how effectively soundproofed the rooms were, except that the respondent said that he told the acupuncture patient that if she needed him to call out loudly: p 2-25. 
16. [16]
    The standard of proof in this matter is the balance of probabilities, although because of the nature of the misconduct alleged, the approach laid down in Briginshaw v Briginshaw (1938) 60 CLR 336 applies.  I have had regard to the submissions made by defence counsel at the criminal trial, and to the summing up of the trial judge.  Much of what her Honour said is also relevant to my consideration, although the rules of evidence do not apply in the Tribunal, and accordingly I have a wider range of material than was available to the jury.^[12]  So far as the summing-up was relevant, I have taken it into account.^[13] 
17. [17]
    I do not accept the account given by the respondent, which I do not find at all plausible.  I suppose it is possible that a woman could become sexually aroused while being massaged, perhaps particularly on the upper thigh, but if that occurred I would expect her to speak about the situation, rather than just grab the hand of the masseur.  A woman who had been rejected might feel embarrassed and not want to continue the massage, but I would not expect her to react by alleging sexual assault. 
18. [18]
    On the other hand, the behaviour of the complainant after the incident was quite consistent with an assault having occurred.  She messaged her partner to complain even before leaving the room, she left the premises quickly and went straight to the centre management where she repeated her complaint, the police were called, and she promptly complained to them.  She showed visible distress.  The inconsistencies in the versions are I consider explained by the extent to which she would have found the events of that day distressing,^[14] and no doubt she was experiencing great stress when giving evidence in the court.^[15]  She has been consistent about the most significant part.  I also consider that her evidence receives some support from the fact that a substance found in massage oil used at that practice was found in her vagina, even if it has not been shown to have been physically impossible for it to have been there for any other reason. 
19. [19]
    On the whole of the evidence, and having due regard for the need for caution and the approach in Briginshaw, I am satisfied that the respondent did sexually assault the complainant as alleged in the referral.  The first allegation has been proved. 

The failure to report

20. [20]
    There was no dispute that the respondent had failed to report that he had been charged with the offence, as required by the National Law s 130(1).  The second allegation has been proved. 

Characterisation of conduct. 

21. [21]
    I am conscious of the definition of professional misconduct in the National Law.  The sexual assault by a practitioner of a person who has attended that practitioner for treatment is a very serious matter, and this was a serious example of a sexual assault, involving penetration.  It is common enough for sexual assault on a patient to be characterised in that way, as shown in the decisions discussed below.  It is clearly conduct which is significantly below the standard to be expected of a registered health practitioner.  As pointed out in the submissions of the applicant, it involved a breach of the Code of Conduct of the Chinese Medicine Board, the Australian Charter of Healthcare Rights and the National Code of Conduct for Health Care Workers.  In the circumstances, the sexual assault is appropriately characterised as professional misconduct.
22. [22]
    The failure to report that he had been charged involved a breach of the requirements of the National Law, and hence was unprofessional conduct by definition. 

Sanction 

23. [23]
    In imposing a sanction, the health and safety of the public are paramount.^[16]  Disciplinary proceedings are protective, not punitive in nature.^[17]  Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[18]  Insight and remorse on the part of the respondent are also relevant.^[19]  The fitness to practice of the respondent is to be assessed at the time of the hearing.^[20]  A number of factors relevant or potentially relevant to sanction were identified in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]. 
24. [24]
    The conduct in this case was a very significant breach of the duties and responsibilities of the respondent, taking advantage of the vulnerable position of the complainant.  It revealed a serious lack of understanding of appropriate behaviour for a health practitioner.  Further, there is no evidence of any insight into the wrongfulness of his conduct, or evidence of remorse. 
25. [25]
    The applicant submitted that the respondent should be reprimanded, should be precluded from applying for registration as a health practitioner for a period of five years, and should be prohibited from providing any health service until he obtains registration as a health practitioner.  The applicant did not seek costs from the respondent.   
26. [26]
    In Health Ombudsman v Arora [2019] QCAT 200 a registered nurse sexually assaulted three patients, including by digital penetration.  The practitioner was acquitted in all three trials, but did not engage with the Tribunal proceeding.  The Tribunal found that the conduct had occurred and that it amounted to professional misconduct, and imposed a preclusion period of six years on top of a period of over five and a half years during which his registration had been suspended, or he had been unregistered. 
27. [27]
    In Pharmacy Board of Australia v Tan [2016] VCAT 1653 a pharmacist working at a hospital who had raped a patient had his registration cancelled and was disqualified from applying for four years.  He had also been convicted of the criminal offence.  The matter proceeded on the basis of an agreed statement of facts, and common submissions.  The Tribunal accepted that the practitioner regretted the offending and was remorseful.  The agreed facts included that he was suffering an adjustment disorder at the time of the offending, but the Tribunal did not refer to that factor in approving the submission as to sanction. 
28. [28]
    In Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264 a registered nurse raped a patient after administering morphine to her, contrary to the directions of the treating doctor.  He had been convicted on a plea of guilty and sentenced to five years imprisonment.  The Tribunal accepted that the practitioner’s psychiatric condition was relevant to sanction, and imposed a preclusion period of eight years from the date of the order, imposed a number of conditions to be satisfied before applying for registration (relating to his mental health, and further education), and imposed a number of conditions on any future registration.^[21]  The order was made about three and a half years after his registration was suspended, and he later allowed it to lapse. 
29. [29]
    I was also referred to Medical Board of Australia v Rall [2016] QCAT 228, but I regard it as too different factually to be of assistance. 

Conclusion

30. [30]
    In the circumstances I accept the submission of the applicant that the respondent is currently unfit to be registered, and that it is appropriate to apply a preclusion period.  The respondent has been away from his profession for about four and a quarter years.  An additional preclusion period of five years is reasonable, and consistent with the outcome in Arora (above), allowing for the factual differences.  The applicant also seeks a prohibition on his providing any health service until he has obtained registration as a health practitioner.  That would replace the interim prohibition order, which merely excluded him from treating female patients.  That was put in place after the trial of the criminal charge, and before there was a finding by this Tribunal that the conduct occurred.  Accordingly it is appropriate to reassess it.  A prohibition order is appropriate to prevent his working as a massage therapist, which does not require registration, in order to protect the public.  In all the circumstances, the order sought by the applicant is appropriate. 
31. [31]
    I acknowledge the assistance of the assessors in this matter.  The decision of the Tribunal is that:

1. The respondent has behaved in a way that constituted professional misconduct, as particularised in Allegation 1 in the referral. 
2. The respondent has behaved in a way that constituted unprofessional conduct, as particularised in Allegation 2 in the referral. 
3. The respondent is reprimanded.  
4. The respondent is disqualified from applying for registration as a health practitioner for five years from the date of this order.
5. The interim prohibition order issued by the applicant on 26 September 2019 is set aside under the Health Ombudsman Act 2013 (Qld) s 73(2)(a)(ii). 
6. The respondent is prohibited from providing any health service until he obtains registration as a health practitioner. 
7. The parties are to bear their own costs of the referral.