Health Ombudsman v Dawson[2023] QCAT 394

[2023] QCAT 394

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

ROBERTSON, Judicial Member

Assisted by:

MS BANWELL

MS BARKER

MR MURPHY

No OCR 99 of 2021

Director of Proceedings on behalf of the HEALTH OMBUDSMANApplicant

v

DAWSON, Travis JamesRespondent

BRISBANE

WEDNESDAY, 6 SEPTEMBER 2023

JUDGMENT

1. [1]
   JUDICIAL MEMBER: On 19 April 2021, the applicant Director filed a referral in the Tribunal seeking findings of professional misconduct and disciplinary orders in relation to the respondent, who was a registered nurse at all relevant times. The conduct the subject of the referral relates to the respondent’s conviction for offences of rape and sexual assault and two offences of contravention of a domestic violence order, which occurred over a period of approximately five days in October 2018. On 28 February 2020, the respondent pleaded guilty to the contravention order charges in the District Court in Brisbane.

2. [2]
   He had previously pleaded guilty to offences of rape and sexual assault which occurred on the same dates as the contravention order breaches. On 28 February 2020, the respondent was convicted of all offences and sentenced to concurrent terms of five years for the rape, 18 months for sexual assault, and 3 months for each of the contravention order offences, to be suspended for a five-year period after the respondent had served 20 months in prison.

3. [3]
   At the time he was charged with the four offences in October 2018, the respondent was employed as a registered nurse at a private hospital in Brisbane. He was stood down from his employment immediately and he has not worked as a nurse since October 2018.

4. [4]
   As the sentencing Judge noted in her reasons on 28 February 2020, although the respondent had no prior criminal history in Queensland, he did have a relevant prior history in New South Wales which included convictions for offences of violence arising out of his domestic relationship with another woman. In relation to these matters, the New South Wales Nursing and Midwifery Council had, on 20 August 2018, that is, only just prior to the Queensland offences, imposed conditions on the practitioner’s registration. The reasons for the decision are in the hearing brief and indicate a number of matters that underpin the respondent’s criminal behavior in New South Wales, including his alcohol dependence.

5. [5]
   The sentencing Judge had before her a report from consultant psychologist Micah Bernoff which had assessed the respondent at the request of his lawyers. The report was based on an interview with the respondent on 1 February 2020 over a period of two hours. As her Honour noted in her sentencing remarks, the psychologist diagnosed the respondent with a general anxiety disorder with mood-congruent depression and alcohol dependence. The respondent has filed a copy of that report in these proceedings. The psychologist reports that the respondent:

…reported that he felt that his career has slowly eroded his wellbeing and emotional state …

and

…that he has been binge-drinking alcohol every night for the last five years.

The psychologist noted:

Mr Dawson has shown a history of impaired judgment when under the influence of alcohol and his behaviour does not appear to have changed over time.

He opined that:

In the absence of treatment [the respondent’s] dysregulation will degenerate further, culminating in a tendency for recidivism.

Her Honour noted that this opinion was relevant to the issue of specific deterrence in particular in the criminal proceedings.

6. [6]
   After his arrest for the Queensland offences, the respondent self-admitted to a mental health inpatient facility on the Sunshine Coast on two occasions in October/November 2018 for treatment for his mental health issues and alcohol dependence. He was prematurely discharged from that unit in early November 2018, following episodes of secret drinking.

7. [7]
   The respondent has filed a brief report from psychologist Theresa Mayne in these proceedings. That report informs the Tribunal that she saw him for three telehealth consultations on three occasions in early 2022, after his discharge from prison. The report that the respondent has filed from Ms Mayne, dated 7 July 2022, simply confirms the three telehealth consultations, and that she has engaged in therapy with him for his issues, including “alcohol abuse”.

Regulatory History

8. [8]
   I have mentioned earlier the hearing before the Nursing and Midwifery Council of New South Wales on 20 August 2018, which resulted in conditions being imposed on the practitioner’s registration. That primarily related to his New South Wales criminal offending.

9. [9]
   On 26 October 2018, the Health Ombudsman received a notification from that Council raising concerns that the respondent had chronic excessive alcohol use which had resulted in urgent interim action being taken by the Council and a condition placed on his registration.

10. [10]
    On 31 October 2018, the Health Ombudsman referred the matter to the Australian Health Practitioner Regulation Agency (Ahpra). On 17 January 2019, the Nursing and Midwifery Board of Australia suspended the respondent’s registration and required him to undertake a health assessment. The respondent did not engage in the health assessment process, and advised Ahpra staff that he continues to suffer ill health and does not intend to practise as a nurse. In September 2020, as a result of the respondent failing to renew his registration, his name was removed from the register and he has not been registered as a nurse since that time.

11. [11]
    The Health Ombudsman received information from the Queensland Police on 22 May 2020 that the respondent had been charged with the offences the subject of the hearing in the District Court in February of 2020 and, as a result, the Health Ombudsman commenced an investigation and ultimately the matter was referred to the Director. On 29 April 2021, while the respondent was still incarcerated, the applicant filed the disciplinary referral in the Tribunal under the Health Ombudsman Act 2013 (Qld).

The Relevant Facts

12. [12]
    The respondent has cooperated with these proceedings despite the referral being filed while he was still incarcerated. The parties have filed an agreed statement of facts. There are no factual issues in dispute.

13. [13]
    It is not necessary to go into fine detail in relation to the respondent’s criminal conduct involving his domestic partner of approximately two years who, in October 2018, was visiting him at his home in Queensland. The apprehended violence order the subject of the two contravention counts was then in place, which included a prohibition of him visiting her at her residence or being in her company within 12 hours of drinking.

14. [14]
    Both incidents on the 1st and 6th of October 2018, occurred in the context of the respondent drinking. On the first occasion, and despite her many statements that she did not want to have intimate contact with him, he forced his penis into her vagina while restraining her and had intercourse with her against her will for approximately three minutes. After that incident, she remained at his Brisbane residence and in the intervening period they had consensual intercourse on a number of occasions.

15. [15]
    On 6 October 2018, in the context of the respondent having consumed alcohol and yelling at and insulting his then partner, he touched her vagina on a number of occasions without her consent.

Characterisation

16. [16]
    Clearly, as the respondent accepts, violent sexual offending of this nature by a registered nurse constitutes professional misconduct as that term is defined in all three limbs of section 5 of the National Law.^[1]

17. [17]
    Health practitioners enjoy the benefits of registration, and the obligations of such require them to conduct themselves with propriety, both in the conduct of their profession and their personal life. Criminal offending punishable by imprisonment almost always has an adverse effect on the reputation of a profession and can impair public confidence in the profession.

18. [18]
    There is ample authority that the commission of such serious sexual criminal offences by a registered health practitioner will invariably result in a finding that the conduct constitutes professional misconduct on the basis that such egregious conduct is fundamentally inconsistent with the practitioner being a fit and proper person to hold registration.

19. [19]
    The cases referred to by the applicant in the written submission filed in the Tribunal amply support that conclusion. The fact that the respondent’s conduct occurred outside his professional role as a registered nurse is not an impediment to a finding by the Tribunal of professional misconduct. I agree with the applicant’s submission that the respondent’s rape and sexual assault on the complainant constitutes the most serious case of professional misconduct, aggravated by the fact that both sexual offences constituted domestic violence offences and occurred and were committed during the currency of an apprehended violence order.

Sanction

20. [20]
    The main principle for administering the Health Ombudsman Act 2013 (Qld) is that the health and safety of the public are paramount. The purpose of disciplinary proceedings such as these is protective and not punitive.

21. [21]
    The principles relating to the imposition of sanction are well known. They may serve one or all of the following purposes: preventing practitioners who are unfit to practice from practising; securing the maintenance of professional standards; assuring members of the public and the profession, that appropriate standards are being maintained and that professional misconduct will not be tolerated; bringing home to the practitioner the seriousness of their conduct; deterring the practitioner from any future departures from appropriate standards; deterring other members of the profession that might be minded to act in a similar way; and imposing restrictions on the practitioner’s right to practise, so as to ensure that the public is protected.

22. [22]
    The appropriate sanction is to be considered at the time of making a sanction and not at the date of the conduct.

23. [23]
    The respondent’s conduct here was extremely serious, in that it constituted a breach of trust and the ethical responsibility the respondent owed to his colleagues, patients, members of the profession and the community, all of whom would expect that a registered nurse would act appropriately and lawfully. The conduct constitutes serious criminal offending against a vulnerable person. It was not an isolated incident. It occurred on a number of occasions over the period of approximately a week.

24. [24]
    The significance of deterrence in disciplinary proceedings is not to punish. It is important as a protective purpose. A sanction order in a professional disciplinary proceeding serves to emphasise to other members of the profession or to reassure the public that a certain type of conduct is not acceptable professional conduct.

25. [25]
    In this case, there is a particular need for specific deterrence. Clearly the behaviour of the respondent the subject of the referral, and I will infer his previous conduct in relation to another domestic partner, is directly linked with his health issues, in particular his alcohol dependence.

26. [26]
    The material filed in the Tribunal, both by the applicant and the respondent, does not give the Tribunal any confidence that the respondent has done much to address the underlying causes of his misconduct in the years that have passed since his offending in 2018.

27. [27]
    He has filed a reference from a friend, dated 2 June 2023, which does not deal with this issue. His submission filed on June 2023 does not address this important issue. His statement in his submission, dated 29 June 2023, to the effect:

To encapsulate my overall feelings of the situation I would start by saying I am extremely sorry for any physical, emotional or psychological discomfort that I have caused [the complainant]. It was not my intention to harm her in any way.

His comments today in relation to issues of insight and remorse suggest strongly that he still remains an ongoing risk of reoffending in the context of alcohol abuse.

28. [28]
    The report filed before the sentencing Judge suggested that the respondent then presented as a risk of recidivism, absent clear evidence that he had addressed his alcohol dependence. The report of Ms Mayne is of little assistance in that regard and, as I have noted, his comments in his trial submission and his comments orally to the Tribunal suggest that he has done very little to address the serious underlying health issues that are directly implicated in his professional misconduct.

29. [29]
    I agree with the applicant that there remains here a very strong need for specific deterrence and, on the basis of the evidence before the Tribunal, the respondent is not presently a fit and proper person to hold registration as a nurse. That seems to be conceded by the respondent in his trial submission.

30. [30]
    He has demonstrated remorse by his cooperation with the criminal courts and this Tribunal; however, I am not satisfied that he has appropriate insight into his impediment or that he has any real understanding of the harm that he may have caused his partner and the impact of his conduct on the reputation of what is a vital profession which sits at the centre of health care in our country. Indeed, his submissions, both written and oral, are indicative of a person who focuses on his own misfortune without appreciating the direct connection between the consequences he has suffered and his own conduct.

31. [31]
    The applicant fairly raises the issue of delay in the written outline. In my view, this is not a matter in which delay plays any part in determining the appropriate sanction. It was appropriate, given the history referred to above, that the criminal proceedings be allowed to conclude before the referral was made to the Tribunal.

32. [32]
    As the applicant notes in the submission, the intervening period since his criminal conduct provided him with time to seek treatment and to demonstrate steps he may have taken to address his conduct, an opportunity which he has not taken.

33. [33]
    A review of the comparable decisions demonstrates that health practitioners who have engaged in conduct involving rape and sexual assault can expect to face a very significant period of preclusion from practice. In this case, the applicant is seeking an order that the respondent be disqualified from applying for registration as a registered health practitioner indefinitely. The cases referred to in the applicant’s submissions, such as Health Ombudsman v Han [2022] QCAT 440, Health Ombudsman v Duggirala [2021] QCAT 326, and Health Ombudsman v Hoddle [2022] QCAT 142 are not directly comparable, as the applicant concedes.

34. [34]
    In this case, the conduct the subject of the referral has to be seen in the light of the previous conduct, the subject of the convictions, and the determination by the Nursing and Midwifery Council of New South Wales, and the respondent’s conduct since in response to his impairment, even after serving a lengthy period of time of imprisonment. This all serves to suggest to the Tribunal that at this point there is really no material or evidence which suggests that he is likely to address those issues and, at any time in the future, become a fit and proper person to be registered as a nurse.

Orders

35. [35]
    For those reasons, the findings and orders of the Tribunal are as follows:

1. pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (the HO Act), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;
2. pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
3. pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner indefinitely;
4. pursuant to section 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service; and
5. each party must bear their own costs of these proceedings.