Health Ombudsman v EIW[2023] QCAT 395

[2023] QCAT 395

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

ROBERTSON, Judicial Member

Assisted by:

DR DE SILVA

DR FUNG

MR MURPHY

No OCR 119 of 2022

Director of Proceedings on behalf of the HEALTH OMBUDSMANApplicant

v

EIWRespondent

BRISBANE

WEDNESDAY, 6 SEPTEMBER 2023

JUDGMENT

1. [1]
   JUDICIAL MEMBER: The conduct the subject of the referral filed in this Tribunal by the applicant Director on 31 May 2022, relates to the respondent’s conviction for eight counts of offences of a sexual nature committed during the 1993 calendar year against the then 12 to 13 year old daughter of the woman with whom he was then living in a de facto-type relationship. The respondent was not charged with any offences arising out of this conduct until 2017. The complainant had made a complaint in 1997 which she withdrew in 1998. She saw the police again in 2015, so some 22 years after the events which are the subject of the allegations.

2. [2]
   The respondent has always, and still does deny the conduct the subject of the convictions. He first went to trial before a jury in November 2019. At that trial, 1 count in an 18 count indictment was withdrawn by the Crown. He was acquitted of 5 counts, but the jury could not agree in relation to the remaining 12 counts. He was retried on those counts by a judge sitting alone, and convicted of 8 counts and acquitted of 4, by her Honour Judge Dick SC on 7 September 2020 in the Cairns District Court.

3. [3]
   The respondent appealed to the Court of Appeal, and his appeal was dismissed on 24 August 2021, and he failed in a bid to obtain leave to appeal to the High Court. He was sentenced by her Honour to four years’ imprisonment, suspended after serving two years, with an operational period of five years. He has served the imprisonment component of that sentence and is still subject to the operational period, which will expire on the 11^th of September 2025.

4. [4]
   As from the date of his release from prison on 6 September 2022, the respondent became a reportable offender and as such, he is obliged to comply with the provisions of that Act^[1] for a period of five years from that date.

5. [5]
   The respondent was born on 7 December 1966, so he was 26 at the time of offending and is 56 now, and will soon turn 57. He first obtained registration as a dentist on 7 May 1991. Until the Office of the Health Ombudsman (OHO) was advised of the original charges, the respondent had no disciplinary notifications of any nature. As a result of immediate registration action, conditions were imposed on his registration on 3 June 2019. Those conditions were onerous, but he continued to practise as a dentist until his conviction on 7 September 2020.

6. [6]
   On 21 September 2022, that is, after his release from prison, the Health Ombudsman suspended his registration on public interest grounds. It is agreed that for the purposes of determining an appropriate response by way of sanction, that he has now been out of practice for a period of three years.

7. [7]
   The parties agree that the conduct the subject of the referral is properly characterised as professional misconduct, as defined in all three limbs of the definition of that concept in section 5 of the National Law.^[2] The parties also agree that in addition to a reprimand, the respondent’s registration should be cancelled and that he should be disqualified from applying for registration. The applicant submits that he should be disqualified indefinitely, and Mr Mellick, on the respondent’s behalf, contends for a period of three years from today’s date.

The Relevant Conduct

8. [8]
   The conduct the subject of the convictions need not be repeated in these proceedings. It is appropriately summarised in the judgment of Morrison JA in the Court of Appeal decision of R v GJL [2021] QCA 175 at [1]–[25]. In the applicant’s written submission to this Tribunal at paragraph 8, the applicant summarises the conduct in these terms:

In summary, in 1993, the respondent engaged in a sexual relationship with female child who was aged 12 and 13 at the time of the offences (the complainant). At the time of the offences, the respondent was in a relationship with the complainant’s mother. The conduct included the respondent placing his hand on the complainant’s thigh, rubbing/touching/licking of the complainant’s breasts and vagina, digital penetration of the complainant’s vagina, performing oral sex on the complainant, intercourse, and maintaining an unlawful sexual relationship with her.

9. [9]
   Mr Mellick, for the respondent, although submitting recently that his client still does not accept any of the conduct the subject of the convictions, acknowledges correctly that the Tribunal will proceed on the basis that the convictions are sound and the basis of the conduct as set out in that summary and set out in the agreed statement of facts will be the basis on which the Tribunal will proceed to characterise the conduct. This includes the fact that the conduct, as described by the sentencing Judge as grooming type conduct, and that during the course of the relationship with the complainant, including the sexual acts, the respondent:

...set out, quite coldly, to endear (himself) to her.

Characterisation

10. [10]
    It is accepted that the applicant bears the onus of proof. The parties agree, with the benefit of legal advice, that the conduct as described constitutes professional misconduct as caught by paragraph (a) and (c) of the definition of “professional misconduct” as defined in section 5 of the National Law.

11. [11]
    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 can adversely affect the reputation of a profession and impair public confidence.

12. [12]
    There is ample authority that the commission of serious sexual criminal offences by a registered health practitioner against a child will inevitably and invariably result in a finding that the conduct constitutes professional misconduct, on the basis that such egregious conduct is fundamentally inconsistent with a practitioner being a fit and proper person to hold registration: see Health Ombudsman v GCV [2020] QCAT 30, and Health Ombudsman v DKM [2021] QCAT 50.

13. [13]
    The serious sexual offending by the respondent against a young child in his care over the course of a number of months constitutes a most serious kind of professional misconduct.

Sanction

14. [14]
    The main principle for administering the Act is that the health and safety of the public are paramount. The purposes of disciplinary proceedings is protective and not punitive.

15. [15]
    The imposition of sanction may serve one or all of the following purposes; preventing practitioners who are unfit to practise from practising; securing maintenance of professional standards; assuring members of the public and the profession that appropriate standards have been maintained and that professional misconduct will not be tolerated; bringing home to the practitioner the seriousness of the 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 a practitioner’s right to practise so as to ensure that the public is protected.

16. [16]
    The appropriate sanction is to be considered at the time of making the sanction and not at the time that the conduct the subject of the proceedings occurred.

17. [17]
    The respondent’s actions constituted a significant breach of the trust and ethical responsibility that he owed to his colleagues, patients, members of the profession, and the community, all of whom would expect that a dentist would act appropriately and lawfully.

18. [18]
    As noted by her Honour, the respondent endeared himself to the complainant and groomed her. She said in the course of the sentencing proceedings that:

She was a vulnerable child. She had no father figure. He pursued her endearment. And then afterwards, when she approached him, he ruthlessly rejected her.

19. [19]
    The respondent placed his sexual desires above the safety and wellbeing of a vulnerable child.

20. [20]
    As noted earlier, the complainant waited around 4 years before she made her initial complaint to police when she was 17. She withdrew the complaint the following year, because it was emotionally beneficial to her. She then waited a further 17 years before again approaching the police.

21. [21]
    I accept the submission made by the applicant that as a matter of common experience, significant delay in complainants reporting sexual abuse is not unusual. The effect is that complainants may live in the knowledge that the perpetrator has not been held accountable for their actions and conversely, as in this case, the respondent being aware of the complaint being made in 1997, he has the prospect of the matter being revived hanging over his head, as it was in this case.

22. [22]
    The significance of deterrence in disciplinary proceedings is not to punish. It is important for a protective purpose. In this case, given the fact that the respondent’s offending occurred 30 years ago, and that he has not otherwise breached his professional obligations or reoffended in any way apart from this conduct the subject of the trial, specific deterrence does not loom large as a factor in formulating sanction.

23. [23]
    As to the issue of risk, the trial Judge noted that there had been no reoffending of a like nature, and that can be seen as a sign of rehabilitation. The respondent’s affidavit refers to his family situation and his work as a dentist in the intervening period, and his work in the community, being in a regional city, and that these are all factors that are in his favour. He has also consulted a psychologist on two occasions since his release from prison.

24. [24]
    The criminal punishment suffered by him and the loss of ability to practise, and the passage of time since the offending conduct, would certainly have had a salutary and deterrent effect on him.

25. [25]
    General deterrence is certainly an important factor in this matter. His criminal conviction, the conduct the subject of this conviction is serious, despite it having occurred 30 years ago. The sanction should reflect the need to illustrate that failing to meet the required standards has significant disciplinary consequences, and that membership of the dental profession requires a high standard of behaviour. Moreover, the public needs assurance that the profession finds such conduct, whether the offences were historical or recent, intolerable, and that it will take action to maintain its own standards.

26. [26]
    The respondent’s insight and remorse are relevant considerations for the Tribunal when considering the appropriate orders. True insight on a practitioner’s part is of potential relevance for any continuing risk to the public. The respondent has maintained his innocence throughout the criminal proceedings and continues to maintain his innocence.

27. [27]
    He has demonstrated some insight by the attendance upon his psychologist twice since his release from prison, the offer to comply with any restrictions and/or conditions imposed on him if he were permitted to continue practising at some stage in the future including not treating patients under the age of 18, undertaking counselling, assessments, and mentoring courses, and cooperating in these proceedings.

28. [28]
    The intervening period between when the respondent was charged and now has provided the respondent with time to demonstrate the steps he has taken to address his conduct.

29. [29]
    In the context of proceedings of this nature, the long delay between the offending and the complaint to police, and since, has demonstrated that the respondent has led an otherwise law-abiding life. Until his conviction, he practised as a dentist. He has not committed any other offences, nor has he been the subject to any other disciplinary process. He has a large, supportive family, which is another factor that persuades the Tribunal that despite this serious conduct 30 years ago in the context of a domestic setting, he presents now as no risk of repeating his misconduct.

30. [30]
    A review of the comparable cases demonstrates that health practitioners who have engaged in conduct of a sexual nature involving children can expect that their registration will likely be cancelled and that they will face a significant period of preclusion from the profession.

31. [31]
    The applicant has referred to a number of cases in its very helpful and comprehensive submission. As Mr Mellick correctly observes, it is very rare, if not impossible, to find any exact comparable case, and that is the case here. It is very important from the perspective of the public having confidence in health professionals and the proper regulation of the profession, and in in the interests of public safety and health, that Tribunals not only in this State, but throughout the country, endeavour to reach decisions that reflect some consistency. That is also an important matter in maintaining public confidence in disciplinary Tribunals.

32. [32]
    In my view, the conduct here falls somewhere between the conduct reflected in Nursery and Midwifery Board of Australia v Burrows [2020] QCAT 164, and Health Ombudsman v DKM [2021] QCAT 50, although both are distinguishable on their facts. Dental Board of Australia v BYX (Review and Regulation) [2019] VCAT 1739 is also a helpful decision as it involved a dentist.

33. [33]
    The applicant, by reference to various authorities, correctly submits that the respondent’s sexual offending against the complainant child in this case compels a conclusion that at the present time, there are grounds to believe that the respondent is not a fit and proper person to hold registration as a dentist, and indeed, the concessions made on his behalf by Mr Mellick reflect the correctness of that submission. The real issue is whether, as the applicant contends, as well as cancellation there should be disqualification indefinitely, or whether it should be a finite term.

34. [34]
    In Health Ombudsman v DKM, at [58]–[59], the Tribunal observed:

A finite period of preclusion would be appropriate if the Tribunal concluded that, upon the end of that period, there is a real prospect that the respondent would then be a fit and proper person to practise his profession. On the other hand, an indefinite disqualification is required if the Tribunal concludes that there are no grounds to believe that the respondent may become fit to practise as a (health practitioner). To adopt a turn of phrase used in decisions relating to legal practitioners, a test of probable permanent fitness is whether “the character of the practitioner is so indelibly marked by the misconduct that he cannot be regarded as a fit and proper person” to be registered as a (health practitioner).

35. [35]
    The applicant also helpfully refers to the list of factors set out in McBride v Walton [1994] NSWCA 199 at page 34, which are factors that are relevant to determining a person’s fitness to be a health practitioner. I have referred to the aspects of the conduct that are the most serious, which would lean towards the submission made by the applicant, and the matters in the respondent’s favour, which would lean towards a finite period of disqualification from applying for registration.

36. [36]
    It is axiomatic to observe that the health and safety of the public will be a factor that will be considered by regulators in the future, should the respondent reapply for registration as a dentist, as he has indicated he is hopeful of doing.

37. [37]
    In my view, what distinguishes this case from all the others referred to in the applicant’s outline of submissions, and into the paragraphs quoted above from Health Ombudsman v DKM, is the long period of time that has elapsed between the offending and now. In my view, maintenance of professional standards and preservation of public confidence in the dental profession can be appropriately met by a finite, but lengthy, period of disqualification.

Orders

38. [38]
    The 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(3)(e) of the HO Act, the respondent’s registration is cancelled;
4. pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of five years from today’s date;
5. the immediate registration action is set aside, pursuant to section 62(2)(a)(ii) of the HO Act; and
6. each party must bear their own costs of the proceedings.