Health Ombudsman v ANP[2022] QCAT 6

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 Dr J Osborne, Professor J Searle and Ms J Fenton in accordance with the Act.^[1] 
2. [2]
   The respondent was at the relevant time a registered medical 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 he has been convicted of one count of distributing child exploitation material contrary to the Criminal Code s 228C(1).  The Tribunal has been provided by the applicant with material about the matter, and submissions in writing.  The respondent is legally represented, and has provided submissions in writing and filed a number of affidavits.  The parties have provided an agreed statement of facts for the proceeding. There is no dispute that the respondent engaged in professional misconduct, although the parties diverge in relation to the appropriate sanction.

Background

3. [3]
   From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows.  The respondent was born in 1975 and is now 46 years old.  He has been registered as a medical practitioner since 1998, and as a specialist neurosurgeon since 2007.  At the relevant time, he was in private practice as a neurosurgeon.  He has no previous disciplinary history, and had no prior criminal history. 
4. [4]
   On 14 September 2020 the respondent was convicted on his plea of guilty of one count of distributing child exploitation material.  The offending related to an incident when the respondent and an undercover police officer were in an internet chat room and the respondent sent the officer one indecent image of a child and two short videos, one of a child in a shower rubbing her genital area, and one of a child rubbing her genital area with a toothbrush while an adult penis was masturbated to ejaculation.  The latter video would be in category 3 on the Oliver Scale,^[2] the other two items in category 1.^[3]  The respondent was sentenced to imprisonment for fifteen months, suspended forthwith, with an operational period of two years. 
5. [5]
   The sentencing judge described it as an early plea, and took into account that the respondent had been on quite onerous bail conditions since being charged in August 2019, after almost one full day in custody.  Because of the small number of items, he said it was the bottom end of the scale for the offence.  The judge also found mitigating factors in genuine remorse, extensive steps at rehabilitation, strong family support, the loss of his business and break up of his family, public shaming, and that he had been sexually abused while at secondary school by a counsellor, which had led to undisclosed psychological issues which had not been dealt with at that stage.  He said there was a low risk of reoffending. 
6. [6]
   The respondent was arrested and charged on 25 August 2019, and he ceased practice on that day. The respondent reported to AHPRA and to the applicant that he had been charged, as required by the National Law.  On 18 September 2019 the applicant took immediate registration action against the respondent and suspended his registration.  His registration remains suspended.  As a result, his business collapsed, and he is facing bankruptcy. 

Medical evidence

7. [7]
   Since the end of August 2019 the respondent has been seeing a clinical psychologist, who has provided two reports.  The first dated 19 August 2020 advised that the respondent had seen him for treatment in 75 sessions to that date.  The psychologist spoke positively of the respondent’s response to treatment, and of his commitment to resolving his problems.  The psychologist accepted as credible the respondent’s account of significant, protracted sexual abuse while at secondary school, and considered that the effect of this abuse, and of an unproductive attempt to disclose the abuse to the headmaster, has led to a history of counterproductive coping mechanisms, and a range of self-defeating behaviours.  He outlined an extensive range of psychometric testing,^[4] and suggested that the most likely diagnosis was Dysthymic Disorder, although a number of other possible diagnoses were identified. 
8. [8]
   The psychologist expressed the opinion that the respondent was at low risk of reoffending, and said that his reaction to his past abuse had changed positively during the treatment period, as had his relationships with other family members, despite the failure of his marriage.  The effect of this evidence is that the sexual abuse he had suffered had produced significant psychological problems for the respondent, which had not been properly treated because the abuse had not been disclosed until after his arrest.  The result of the treatment he had received had been a considerable improvement in his mental health. 
9. [9]
   The psychologist provided an updated report dated 9 July 2021, which confirmed that the respondent had been continuing with treatment, attending a further twenty-six sessions.  The psychologist considered that the risk of reoffending was extremely low, and that at that time there was no continuing diagnosis of a mental health condition.  His prognosis remained positive, and he considered that the respondent remained committed to the therapy with the psychologist, and that he showed good insight into, and considerable remorse for, the offending. 
10. [10]
    An affidavit by the respondent’s former wife, prepared for the criminal proceedings, gave some background details of the symptoms displayed by the respondent over some years, suggestive of psychological issues.  In 2004 he sought psychiatric help, and was diagnosed with Obsessive Compulsive Disorder, and commenced medication, but she said that he then became more distant and disconnected emotionally, and very focused on his career.  Their relationship was troubled, and he complained of great inner pain and unhappiness, and a feeling of being broken inside.  She said his positive outlet was his work, where he was very successful.  She confirmed that it was only after he had been charged that he disclosed the sexual abuse he had suffered.  She also provided details of the adverse psychological effects of the criminal charges on her and their children. 
11. [11]
    Affidavits from the respondent’s parents, and others who have known him for a long time, spoke of the positive change in the respondent’s outlook and relationship with them since he has been receiving his therapy from the psychologist.  One friend spoke of a history of risk taking behaviour on the part of the respondent

Characterisation of conduct

12. [12]
    The applicant submitted that the conduct reflected in the conviction amounted to professional misconduct.  The conviction is within the extended definition of unprofessional conduct in the National Law, and because of its nature, as a sexual offence involving children, it was an example of such conduct that fell substantially below the conduct expected of a medical practitioner of an equivalent level of training and experience.  It is unnecessary to consider whether it otherwise satisfied the definition. 
13. [13]
    Such a conclusion is consistent with the decisions of Tribunals dealing with other cases of conviction of sexual offences discussed below.  That the conduct was appropriately characterised as professional misconduct was not controversial, and the Tribunal so decides.

Sanction 

14. [14]
    In imposing a sanction, the health and safety of the public are paramount.^[5] Disciplinary proceedings are protective, not punitive in nature.^[6] Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[7] Insight and remorse on the part of the respondent are also relevant.^[8]  The fitness to practice of the respondent is to be assessed at the time of the hearing.^[9]  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]. 
15. [15]
    The applicant seeks that the respondent be reprimanded, and that is appropriate.  The applicant also seeks that the registration of the respondent be cancelled, and that the respondent be precluded from applying for registration for a period of one year, on top of the two years that the respondent has already been away from the profession.  The respondent submitted that an adequate sanction, as well as the reprimand, was for his registration to be suspended for a further period of six months, making two and a half years overall.  It was not contentious that the period of suspension already passed should be taken into account.   It is also relevant that he withdrew voluntarily from practice about three weeks earlier.
16. [16]
    The applicant provided a schedule of decisions of this and other Tribunals dealing with practitioners convicted of sexual offences, which demonstrate that it is common enough for registration to be cancelled in response, although there have been cases where suspension has been ordered, rather than cancellation.  Four decisions were discussed during the hearing. 
17. [17]
    In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 the Tribunal allowed an appeal from a decision of the Board to deregister a practitioner, with a two year preclusion period, because he formed an inappropriate personal relationship with a former patient, having previously been her psychiatrist.  For present purposes, the relevance of the decision is in the discussion of the difference between suspension and cancellation of registration, particularly at [42] – [45].  The Tribunal said that the question of whether the conduct was likely to be repeated was very significant - [49] – and that a period of suspension should not be seen as a trivial order: [54], [55].  I respectively agree with what was said there. 
18. [18]
    In Medical Board of Australia v Black [2016] VCAT 892 the practitioner had been convicted of two charges of possession of child exploitation material, comprising a total of 45 images and 67 video files, including of children engaging in sexual activity.  The practitioner had been sexually abused as a child, for the consequences of which he had been treated by a psychiatrist for some years before the offending, and it was accepted that he had possession of this material out of a preoccupation with the experience of himself being molested, rather than for sexual gratification.  There was expert evidence that the practitioner was not a paedophile and was at low risk of reoffending (and of zero risk of a contact offence), and was slowly overcoming his mental health problems from his own abuse.  He had fully cooperated with the criminal and disciplinary proceedings, and had voluntarily suspended his practice for nine months after he reported the charges to the Board.^[10] 
19. [19]
    In that matter the parties jointly submitted for the sanction in fact ordered:^[11] a reprimand, suspension of registration for three months and the imposition of conditions for at least two years that he continue to receive psychiatric treatment, and that he not attend a patient under eighteen except in an emergency. Most of the factors listed there at [54] as factors weighing against cancellation apply also in this matter, except that that practitioner had disclosed the abuse of him, and commenced treatment, before this offending, a matter of some concern to that Tribunal, as was the fact that the conduct had been engaged in over a period of time: [55].  That Tribunal noted three earlier decisions in which the registration of a practitioner convicted of child exploitation material offences had not been cancelled.
20. [20]
    The applicant submitted that this decision was distinguishable on the basis of the evidence in that matter of the particular reason for possessing the material, which was not for sexual gratification, whereas statements made in the exchanges in the internet chat when the material was provided showed such an interest on the part of the respondent.  But those statements were investigated and found to be false, and the sentencing judge described them as “fantasy talk”.  Statements shown to be false cannot be regarded as evidence in the form of admissions, and there is no other evidence of a sexual interest in children.  The motivation for the relevant conduct here appears to have been risk taking, associated with the psychological consequence of the abuse he suffered.  The difference from the motivation in Black is not of great significance.  
21. [21]
    In Health Ombudsman v Creagh-Scott [2019] QCAT 69 the practitioner had been convicted of possession of child exploitation material (under the Criminal Code) and accessing and distributing child pornography under the Commonwealth Criminal Code, for which he was sentenced to eighteen months imprisonment, suspended forthwith or subject to immediate release: [6].  The applicant had suspended the practitioner’s registration soon after being advised of the charges, and the following year the practitioner surrendered his registration.  Some of the material involved in the charges was more serious than the material in the present case.  That practitioner had also been led to commit the offences by ruminations on his own experiences of being sexually abused as a child: [6].  He had received treatment for mental health problems he had at the time, and presented positive reports from a psychologist, although his treatment was ongoing and of indefinite duration: [13]. 
22. [22]
    Joint submissions that the respondent be reprimanded, disqualified from applying for registration for a period of three and a half years (on top of almost three and a half years away from the profession) and prohibited from providing any health service to a person under eighteen were accepted as within the permissible range: [14].  In that case the offending was more serious, and the expert evidence suggested that he would not be fit to be registered for some time. 
23. [23]
    In Health Ombudsman v Franklin [2021] QCAT 186 the practitioner had been convicted of one count of accessing child pornography under the Commonwealth Criminal Code (over a period of almost two years), and one count of possessing child exploitation material under the Criminal Code,^[12] for which a term of fifteen months imprisonment, subject to immediate release, was imposed.  He had admitted to police, and to a psychologist, a sexual interest in underage girls, for which he was now receiving therapy, and the psychologist did not consider that a contact offence was likely.  The practitioner did not engage with the disciplinary proceeding, and had surrendered his registration.  The Tribunal reprimanded him, and imposed a disqualification period of four years, on top of a period away from his profession already of about two years.  This case involved more serious offending, because of its extent and duration, and because of the admitted sexual interest in under age girls, which was not shown to have been effectively treated. 
24. [24]
    Ordinarily, general deterrence would be a significant factor in a case of sexual offending.  In the present case, the involvement of mental health problems reduces the significance of this aspect,^[13] and the fact that he lost his business resulting in substantial financial loss, which has also impacted severely on his family, as well as the sentence of imprisonment imposed, serve to show the cost of such conduct to him, apart from any sanction imposed by the Tribunal.  In view of the evidence of improvement in his mental health, and the evidence of the psychologist, personal deterrence is not of great significance.  Also of importance are the maintenance of professional standards, and the maintenance of public confidence in the profession. 
25. [25]
    The offence of which the respondent has been convicted is a serious and concerning one, viewed as such by the public.  It is a form of child abuse, regarded as more serious than possessing or accessing child exploitation material, but not as serious as actual indecent treatment of a child.  Because this involved only three items, and involved only one occasion, it was, as the sentencing judge said, at the bottom of the range for such an offence.  As the applicant pointed out, it breached the code of conduct for medical practitioners.  The respondent has shown good insight into the wrongfulness of the offending, and considerable remorse.   
26. [26]
    The relevant conduct did not occur in a professional context, and there is material before the Tribunal which speaks highly of the respondent’s ability as a surgeon, and expresses the hope that he will be able to return to practice.  Given the very extensive training required for his specialty, and the evidence of his skill, it would not be in the public interest for his capacity to be wasted.  The offending occurred at a time when the respondent was adversely affected psychologically by childhood sexual abuse, which had not been disclosed, and the effects of which had never been properly treated.  He has now obtained appropriate treatment, so that his psychological state has greatly improved.  The respondent has voluntarily undertaken extensive therapy, which has produced this beneficial change.  He is now regarded as not suffering from any psychological disorder.   
27. [27]
    As part of his therapy he has engaged with the school where he was abused, and with the current headmaster, who has also written positively of the unusual progress towards healing that he has seen in the respondent.  A recent letter from him, put in evidence at the hearing, said that the respondent has taken steps to assist other victims of offending by the counsellor, and has also contributed to a project to develop an educational tool in child safety in schools, to help guard against future sexual abuse of students.  This is a valuable form of service to the school community. 
28. [28]
    In view of the strong evidence of considerable rehabilitation in the respondent, I consider that it is not now the case that the respondent is unfit to be registered as a medical practitioner, and that in all the circumstances it is not appropriate for his registration to be cancelled.^[14] I consider that the factors relevant to sanction, in particular the considerations of general deterrence, the maintenance of professional standards and the maintenance of public confidence in the profession, can be adequately met by a significant period of suspension of his registration.  It is also appropriate that the respondent be reprimanded, regarded as a significant sanction in itself.   
29. [29]
    After the hearing I had in mind that a suspension for three years would be appropriate, with that period to date from the time when the respondent’s registration was suspended by the applicant.  There is however a difficulty with that approach, because of the Medical Board’s Registration Standard: Recency of Practice.^[15]  That standard, which is characteristically arbitrary and inflexible, has the effect that, unless a practitioner is in full time practice for at least twelve weeks during any three year period, the practitioner is required to undertake a substantial retraining programme.^[16]  As well, this is applied by reference to a “registration period” running from 1^st October to 30^th September. 
30. [30]
    Had the suspension in the present case been imposed between January and June a suspension for three years would not have been a problem, because it would have straddled four registration periods, and there would have been at least twelve weeks practice in any three consecutive periods.  But because the suspension in this case was imposed close to the end of a registration period, a suspension for three years overall will apparently require the respondent to undertake a significant process of retraining.  To impose that requirement on the respondent would, in my opinion, introduce a punitive element into the sanction, which is not appropriate.  As well it would be undesirable to deprive the public of the benefit of his skill as a surgeon for longer than is necessary.  For practical purposes therefore the suspension should be curtailed so that it does not interfere with his capacity to meet the Standard.   
31. [31]
    The Tribunal therefore sought additional submissions from the parties on this issue.  The applicant submitted that the issue did not arise, because the respondent was covered by that part of the Standard which applied to practitioners who have had non-practising registration, or have not been registered, for between twelve months and up to and including thirty-six months.  This was said to require, before recommencing practice, completion of the equivalent of one year’s continuing professional development activities relevant to his intended practice.  In further submissions, the respondent accepted the approach of the applicant, and adhered to the earlier submissions.
32. [32]
    The difficulty with that interpretation is that it proceeds on the basis that the practitioner is unregistered and is applying for registration.  Ordinarily a registered practitioner must apply for registration each year, but when a practitioner’s registration is suspended, he or she is taken not to be registered except for the purposes of the National Law Part 8.^[17]  It follows that the provisions for renewal of registration do not apply to the practitioner during the suspension, and on the expiry of the suspension, the practitioner is automatically returned to the register. 
33. [33]
    This was confirmed by an email from AHPRA to the applicant, helpfully provided to the Tribunal, which advised that, so long as the suspension was for more than one renewal period, the practitioner is then required to apply for renewal of registration within one month.  That will be an application for renewal by a registered practitioner, because at that time the respondent will again be registered. It will therefore be assessed as an application by a registered practitioner, and the respondent will have to show that he meets that part of the standard applicable to a registered practitioner.  The email also confirmed that, if the Standard was not met, it is likely that supervised practice conditions would be imposed by the Board. 
34. [34]
    It follows, in my opinion, that the effect of lifting the suspension at the expiry of the operational period will have the effect that, when the respondent applies for renewal, he will not comply with the Standard and, as foreshadowed in the email from AHPRA, will be subject to conditions imposed by the Board, likely to include supervised practice conditions.  That is the outcome I consider would be punitive, and seek to avoid.  This adjustment must be made by reference to when he in fact ceased practice, on 25 August 2019. Accordingly I intend to shorten the period of suspension overall to about two years and seven months, so that it expires on 27 April 2022. 
35. [35]
    When he applies for renewal, as he will have to within one month, he will comply with the Standard.  One of its deficiencies is that it does not explain how it applies in such a situation, but whether the Standard is applied by reference to the last three completed periods of registration, or to the period of three years before the application to renew, or to the last two completed periods of registration and the current period of registration, there will be at least twelve weeks full time practice in the period of three years.^[18]  
36. [36]
    That does mean that the suspension will expire before the operational period of the suspended imprisonment, but avoiding that would necessarily put him in breach of the Standard.  While it would have been better to have avoided that overlap, avoiding deskilling of the respondent is more important.  The applicant referred to the decision of the Tribunal in Health Ombudsman v OOD [2021] QCAT 388, where it was said to be inappropriate for a period of disqualification from registration of a practitioner to end while the practitioner was still serving a period of parole: [38].  That may well be generally appropriate, but there is an important difference between a period on parole and the operational period of suspended imprisonment, and in any case, any such general approach must always yield to the actual facts of a specific case.  If the sentence had provided for immediate release on parole instead of its being immediately suspended, the parole period would have already expired.^[19] In this case, I consider there is a good reason to depart from that approach.  
37. [37]
    I acknowledge the assistance of the assessors in this matter.  The decision of the Tribunal is that: 

1. The conduct of the respondent referred to in the referral constituted professional misconduct. 
2. The respondent is reprimanded. 
3. The decision of the applicant of 18 September 2019 to suspend the registration of the respondent is set aside. 
4. The registration of the respondent as a medical practitioner is suspended until 27 April 2022.   
5. The parties bear their own costs of the proceeding.