Health Ombudsman v LCK[2023] QCAT 474

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against LCK (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Office of the Health Ombudsman.
2. [2]
   In this matter, the parties have jointly filed and rely upon a Statement of Agreed Facts, and no factual issues remain in dispute. The parties also agree as to the characterisation of the conduct and the appropriate order by way of sanction.

Background

3. [3]
   The respondent was 44 years old at the time of the conduct and is currently aged 49. He obtained a medical qualification in Cape Town, South Africa in 1998.
4. [4]
   He first obtained registration as a medical practitioner in Australia on 8 January 2001.

5. [5]
   In 2008, the respondent became a fellow of the Royal Australasian College of Physicians and obtained a sub-specialty qualification in paediatric emergency medicine. In that same year, he also became a fellow of the Australasian College of Emergency Medicine. He is therefore a specialist in two areas: paediatrics and emergency medicine.
6. [6]
   The respondent worked for Queensland Health from 2000, and from 21 January 2013 he was employed full time as the Clinical Director of the Paediatric Emergency Department at the Prince Charles Hospital (PCH).
7. [7]
   Prior to the conduct the subject of the referral, the respondent had been experiencing various stressors in the workplace and a deterioration of his mental health.
8. [8]
   In February 2018, the respondent became the subject of a workplace investigation relating to the management and care of a six-month-old infant in the Emergency Department at the PCH. During this period, he was asked to take leave and was unable to speak to people about the investigation. Two complaints were made: one with respect to his clinical judgment and interpersonal manner, and one with respect to allegations of a breach of confidentiality. On 26 July 2018, the respondent was advised by letter that both complaints had been finalised. On 1 August 2018, the respondent returned to his substantive position at the PCH. However, during the time of the investigation, the respondent had suffered from significant stress, gossip and innuendo in the workplace.
9. [9]
   The respondent became increasingly anxious, paranoid and obsessive in the latter half of 2018. One week prior to the conduct the subject of this referral, the respondent impulsively consumed a box of paracetamol.

Conduct

10. [10]
    On 10 October 2018, in a suburban Brisbane shopping centre, the respondent used his mobile phone to film up the skirts of seven young women, breaching their privacy and capturing video footage of the anal and genital regions (‘upskirting’).
11. [11]
    The female victims of his offending were aged 18, 20, 22, 23 and 27 years at the time of the offending.
12. [12]
    Police were called to the shopping centre and the respondent was located and detained by police with the mobile phone in his possession. On that same day, the respondent was charged with seven offences pursuant to section 227A(2) of the Criminal Code 1899 (Qld).

13. [13]
    On 11 October 2018, the respondent’s employer at PCH made a complaint to the applicant about the respondent’s conduct and his employment was suspended.
14. [14]
    The respondent first attended a psychiatrist on 12 October 2018, and was admitted to the Toowong Private Hospital, where he was put on intensive regime therapy. He was discharged from hospital on 23 November 2018.
15. [15]
    For six months following his discharge from hospital, the respondent continued with weekly visits to a psychiatrist, a psychologist and a relationship counsellor. These visits have varied at times as required.
16. [16]
    On 28 February 2019, the respondent pleaded guilty in the Brisbane Magistrates Court and was convicted of seven offences relating to his conduct on 10 October 2018. He was placed on probation for a period of 15 months, with conditions that he submit to medical, psychiatric or psychological assessment and treatment as directed. No conviction was recorded.
17. [17]
    The respondent’s employment with PCH was terminated on 9 September 2019.

Procedural History

18. [18]
    On 12 and 14 November 2018, the Health Ombudsman referred the issue of the respondent’s health to the Australian Health Practitioner Regulation Agency. However, on 6 November 2019, the Medical Board of Australia decided to take no further action and decided that the respondent did not have a health impairment that would detrimentally affect his capacity to practise as a medical practitioner.
19. [19]
    Between 7 February 2019 and 3 August 2020, the respondent was the subject of immediate registration action by the applicant by way of chaperone conditions and subsequently, from 9 August 2019, gender restrictions.
20. [20]
    On 6 September 2019, the respondent filed in the Tribunal an application to review the decision of 9 August 2019 which prevented him from treating female patients. At the conclusion of the Tribunal hearing on 3 August 2020, the Tribunal ordered that the conditions should be removed and that no conditions should be imposed on his registration. Reasons for this decision were delivered by Judicial Member McGill SC on 7 September 2020.^[1]

22. [21]
    On 3 July 2019, the Health Ombudsman referred the respondent’s conduct to the Director of Proceedings. On 9 December 2019, the Director of Proceedings referred the matter back to the Health Ombudsman, with a recommendation that the Health Ombudsman further investigate the matter.
23. [22]
    On 31 January 2020, the Health Ombudsman referred the matter to the Director of Proceedings. On 25 March 2020, the Director of Proceedings referred the matter back to the Health Ombudsman with a recommendation that the Health Ombudsman obtain further information.
24. [22]
    On 21 May 2020, the Health Ombudsman referred the matter to the Director of Proceedings for a final time, and this disciplinary referral was filed on 29 May 2020.

Characterisation of conduct

25. [24]
    Both parties submit that that the respondent’s conduct should be characterised as professional misconduct.
26. [25]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

1. unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

2. 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 or experience; and

3. 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.

27. [26]
    The applicant submits that the respondent’s behaviour constitutes professional misconduct under limbs (a), (b) and (c) of the statutory definition.
28. [27]
    The respondent agrees that the respondent’s behaviour constitutes professional misconduct under limbs (a) and (c) but submits that this does not mean that the respondent should be disqualified or suspended necessarily as a consequence of not at the time having been a fit and proper person. On the contrary, the respondent submits that the respondent is currently a fit and proper person to hold registration.
29. [28]
    The offences involved a gross violation of the privacy of seven women, and were contrary to general decency. Although his conduct was unrelated to his practice as a medical practitioner, he breached the trust and respect of the community^[2] and was acting in a manner which was far from ‘ethical and trustworthy’.^[3]

27. [29]
    The respondent was an experienced medical practitioner, who had practised in Australia for nearly 18 years. These acts are inconsistent with the inherent qualities required of a medical practitioner and substantially below the standards expected of someone in his position. Although all the offending occurred during one incident and has not been repeated at any time since, it involved multiple victims and deliberate conduct over a not insignificant period of time.

30. [30]
    Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

31. [31]
    The purpose of orders by way of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia^[4], the imposition of sanction may serve one or all of the following purposes:

    1. preventing practitioners, who are unfit to practise, from practising;

2. securing maintenance of professional standards;

3. assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
4. bringing home to the practitioner the seriousness of their conduct;

5. deterring the practitioner from any future departures from appropriate standards;

6. deterring other members of the profession that might be minded to act in a similar way; and
7. imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.

32. [32]
    At the time of the offending, the respondent was suffering from major depressive disorder and this somewhat impaired his capacity to control himself. However, he still knew that his actions were wrong. Moreover, the Tribunal should have regard to the respondent’s failure to seek appropriate medical treatment for his disorder in the lead up to his criminal behaviour.
33. [33]
    The respondent underwent psychological treatment with respect to his sexual offending behaviour, and cognitive therapy to help him manage workplace and reputational stresses in the future. In March 2019, his treating psychiatrist Dr Varghese agreed that the respondent had significantly benefited from this kind of support. He continues to attend monthly for psychological treatment. He and his wife have also been attending counselling.
34. [34]
    The respondent is now taking medication according to his psychiatrist’s instruction, which medication includes Fluvoxamine, Seroquel, Temazepam and Diazepam.
35. [35]
    However, while one psychologist reports that he is remorseful, another psychologist reports that the respondent repeatedly used conditional statements regarding the offending behaviour, and did not express any spontaneous empathy towards his victims.
36. [36]
    The respondent submits that between February 2019 and August 2020, for a period of 18 months, he was effectively unable to secure employment due to conditions imposed on his registration.

37. [37]
    General deterrence is an important factor despite the offending having occurred in the context of poor mental health. Sanction in this case must demonstrate that membership of the profession requires a high standard of ethical and professional behaviour, and serve as a warning for other medical practitioners to carefully consider their conduct.

37. [38]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[5] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.^[6]

37. [39]
    Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

Non-Publication Order

40. [40]
    In the course of the review proceedings before Judicial Member McGill SC, a non- publication order was made on 7 September 2020 which protected the identity of the respondent, his family, and the victims, as well as any patient, family member of any patient, or employee of the hospital where the respondent worked.
41. [41]
    On 11 December 2020, a non-publication order was made in identical terms in the current matter.
42. [42]
    Under section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal may make a non-publication order only if the Tribunal considers the order is necessary:

    1. to avoid interfering with the proper administration of justice; or

2. to avoid endangering the physical or mental health or safety of a person; or

3. to avoid offending public decency or morality; or

4. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
5. for any other reason in the interests of justice.

43. [43]
    Upon considering the competing submissions of the parties, the Tribunal decides that the non-publication order made in this matter should continue to have effect and this decision has been anonymised accordingly.

Costs

44. [44]
    The parties jointly seek an order that each party pay its own costs of the proceedings. The orders of the Tribunal with respect to costs will reflect the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).