Health Ombudsman v Than[2023] QCAT 478

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 11 of November 2022, Mr Than, a physiotherapist, was convicted in the District Court of two counts of sexual assault.  The conduct the subject of the offences involved Mr Than touching the complainant's genital area and clitoris during the course of his treatment of her for a work injury.
2. [2]
   The conduct the subject of the criminal trials also founded a complaint to the Health Ombudsman on 5 March 2020.  The subsequent investigation has resulted ultimately in the current referral to this Tribunal.
3. [3]
   Mr Than admits his conviction for sexual assault but his position in both trials before the District Court, and his position before this Tribunal now, is that no conduct of the type alleged against him occurred.
4. [4]
   The conviction occurred after a second criminal trial; the first trial resulted in a hung jury.  He pleaded not guilty on both occasions.  He gave evidence in his own defence at both trials.
5. [5]
   He was sentenced to two concurrent periods of imprisonment for 12 months, each of which was wholly suspended for an operational period of two years.
6. [6]
   The Health Ombudsman contends that the Tribunal should find Mr Than’s conduct constitutes “professional misconduct”. Consequent upon that finding, it is submitted the Tribunal should order Mr Than be reprimanded and be disqualified from applying for registration as a registered health practitioner for “a period of between three and five years”. ^[1] The latter order reflects the fact that Mr Than failed to renew his registration on 30 November 2022.
7. [7]
   In his filed Response Mr Than says:

… I would sincerely like to have my credentials fully reinstated. 

Failing that I would ask that restrictions be limited to an order that I not ‘treat the pelvic region of female patients’, even though I declare that I am totally innocent of all allegations …^[2]

8. [8]
   “Professional misconduct” is defined as “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”.  “More than one instance of unprofessional conduct that, when considered together …” fails to meet that standard can also be professional misconduct.^[3]
9. [9]
   “Unprofessional conduct” is also a defined term.  It “means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers”.^[4]

Is Professional Misconduct Established?

The Role of s 79 of the Evidence Act 1977 (Qld)

10. [10]
    In seeking to establish conduct founding each defined concept, but denied by Mr Than, the Ombudsman submits that the Tribunal need go no further than the admitted criminal conviction. Relying upon Chinese Medical Board of Australia v Zhou^[5]; section s 31(2)(a) of the QCAT Act^[6]; and s 79 of the Evidence Act 1977 (Qld), the Board submits:

… it is not necessary for the Tribunal to resolve any dispute about factual matters as they have already been considered by the criminal court and are the basis of the conviction and that the referral to the Tribunal is on the basis that the respondent was convicted of two counts of sexual assault.^[7] [bold emphasis added]

11. [11]
    Respectfully, I consider that submission as expressed is erroneous. 
12. [12]
    Section 79(2) facilitates proof of the fact of conviction in civil proceedings.^[8] If proof of any facts beyond the fact of conviction itself is to be facilitated by s 79, that work is done, not by s 79(2), but by s 79(3).  However, the latter sub-section too has its limitations.  It provides [bold emphases added]:

In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and possessed the state of mind (if any) which at law constitute that offence.^[9].

13. [13]
    Deputy-President Horneman-Wren DCJ has said the section is “not a means of conclusive proof, but prima facie proof of the bare elements of the offence. Henry J observed in a recent Court of Appeal decision^[10]:

[the appellant’s grounds] … wrongly assume s 79 extends to the whole of the factual information which was before a sentencing court.  It does not. … Its deeming effect, by proof of the conviction for the offence, is therefore of the constituent elements of the offence, not the truth of the whole of the factual information placed before the sentencing court.

14. [14]
    The Honourable JB Thomas AO sitting as the Tribunal said of the section:

... In Queensland s 79 of the Evidence Act 1977 permits proof by tender of the conviction, although such proof is not conclusive of the facts and may be rebutted. The relevant provision is that unless the contrary is proved, the person is taken to have committed the acts and to have possessed a state of mind which at law constitutes that offence. That is to say, it amounts only to prima facie proof of the bare elements of the offence. That section of course does not bind this Tribunal but it is indicative of the practice in the Courts...^[11] [Italics in original].

15. [15]
    Contrary to the Ombudsman’s submission, I am unable to see how s 31(2)(a) of the QCAT Act affords support to the argument.  That section is merely permissive of Tribunal proceedings occurring despite pending or completed criminal proceedings. 
16. [16]
    Equally, I do not consider the decision of the South Australian Tribunal in Chinese Medical Board of Australia v Zhou^[12] lends support to the Ombudsman’s contention.
17. [17]
    Zhou involved a Chinese medicine practitioner convicted of the rape of a patient. As in the instant case, Mr Zhou continued to maintain his innocence. He adduced no evidence before the Tribunal in support of that central contention. He conceded the conduct the subject of the conviction (which he continued to deny), and the fact of his conviction and sentence of imprisonment, amounted to conduct which would constitute professional misconduct under the Health Practitioner National Law.”^[13]
18. [18]
    It would appear the particular passage from that case relied upon by the Board is at [57] of the Tribunal’s reasons: “As to the particulars of the conduct, the Tribunal is entitled to rely upon a finding of guilt in a criminal court and is not able to review the essential factual basis of the conviction”.  The statement is referenced to s 39 of that Tribunal’s legislation^[14] and to s 34A of the Evidence Act 1929 (SA). The latter section is similar, but not identical to, s 79(2) of the Evidence Act 1977 (Qld).  There is no equivalent of s 79(3) of the Queensland Act. Section 39 of that Tribunal’s governing legislation is similar, but not identical to, s 28 of the QCAT Act.^[15] 
19. [19]
    In my opinion, the statement in Zhou as to the Tribunal’s inability to review “the essential factual basis” of the conviction is, with respect, entirely consistent with this Tribunal’s interpretation of s 79 of the Queensland Act in the decisions earlier referred to. 
20. [20]
    In my respectful view, the Ombudsman’s reference to the section resolving “any dispute about factual matters” accords to it a function or ambit which it does not have.
21. [21]
    Of course, the section can nevertheless have an important role^[16] in establishing in civil proceedings – including in particular proceedings in the Tribunal of the instant type - the facts constituting the “bare elements of the offence” or the “constituent elements of the offence” where there is no, or insufficient, evidence proving to the contrary of the facts it presumes.

Procedural Fairness

22. [22]
    Reliance upon s 79 by the Ombudsman axiomatically brings with it the possibility that Mr Than may seek to prove facts contrary to those that the section otherwise presumes by reason of his conviction.  Natural justice considerations arise as a consequence.  And, while the Tribunal is not bound by the rules of evidence, it is bound by the rules of natural justice.^[17] Accordingly, Mr Than should be afforded the opportunity to present evidence in support of his contentions, and challenge evidence presented to the contrary. 
23. [23]
    Mr Than represented himself before the Tribunal but was given leave to have a (lay) assistant help with presenting his submissions.  The lay assistant was observed to be someone whom Mr Than trusted and looked to for advice and assistance.   I attempted to set out the matters just referred to and indicated that Mr Than would be given the opportunity to call and challenge evidence if he so chose.  The Tribunal stood down so as to afford Mr Than and his assistant the opportunity to discuss and consider the same.
24. [24]
    Upon resumption, Mr Than indicated that he maintained his denials but did not wish to adduce evidence nor have the complainant called to give evidence so as to cross-examine her.  He was content to rely upon his written material filed in the Tribunal.

Section 79(3) and Mr Than’s Case

25. [25]
    I have read and taken account of the transcript of the sworn evidence of the complainant and Mr Than in the criminal trials, the second of which led to Mr Than being found guilty by a jury.  I have also read and taken account of the sworn evidence of both the physiotherapist who treated the complainant shortly after Mr Than and also, relevantly, Ms Wilson, a friend whom the complainant texted and later visited on the day the conduct occurred.
26. [26]
    Mr Than has filed: a Response; written submissions; an affidavit sworn by him on 8 June 2023; a letter from his pre-conviction employer dated “May 2020”; and specific denials recorded in the Statement of Agreed and Disputed Facts. 
27. [27]
    Mr Than’s written submissions – apparently prepared with lay assistance – are directed overwhelmingly to the impact the criminal convictions have had upon him personally, including financially.  They do not contain or refer to any evidence supportive of his primary position that the conduct alleged against him did not occur. The submissions merely assert baldly that Mr Than “continues to defend his innocence to the criminal charges”. 
28. [28]
    Mr Than’s filed Response again “maintain[s] my innocence as I would never have done such a horrible thing”.  He there poses a rhetorical question: “who would book their next treatment with the very same person who just allegedly assaulted them”. (It might be added that the complainant also gave evidence that she remained in the consultation room after the alleged conduct to fill out various forms she was given).^[18] His Response also asserts that a hung jury in the first trial points to the alleged conduct not occurring.^[19]  
29. [29]
    The affidavit filed by Mr Than deposes, “I have never behaved inappropriately as described by the complainant to the OHO and the police” and “I was found guilty of something I did not do”.^[20]  The affidavit also deposes to having worked as a physiotherapist in the same practice for some seven years without any complaint either of the instant type or at all.
30. [30]
    The Statement of Agreed and Disputed Facts records denials of specific facts by Mr Than.  He denies that he:

• Was able to see between [the complainant’s] legs as she performed leg exercises he requested she perform;
• Parted the complainant’s bottom and was able to see her anus while massaging her bottom;
• Slid his hands under the complainant’s body, along her groin and touched her genitals while massaging the complainant’s hip;
• Touched the complainant’s clitoris twice;
• Touched the complainant’s clitoris in a sliding motion being along her groin to her clitoris and then back out along her groin.  He disputes there was “any circular motion and no penetration, just a touch and remove”;
• Said in a quiet voice after such conduct ‘oh shit’ and ‘oh fuck’.^[21]

31. [31]
    The letter from Mr Than’s employer refers to Mr Than’s unblemished work record; positive feedback from patients, including female patients; and the employer’s willingness to keep him employed and to arrange supervision of his treatment of female patients pending determination of the criminal proceedings.  I have treated the letter as, in effect, evidence of good character; that is evidence supporting a contention that the conduct is unlikely to have occurred.
32. [32]
    The circumstance of the complainant booking another appointment immediately after the occurrence of the alleged conduct occurs in a broader context. The sworn evidence of the complainant during two criminal trials reveals:

• The appointment was in fact made for her by a receptionist for two days after the instant appointment;
• The complainant did not attend the second appointment;
• She cancelled the second appointment after receiving a text from Mr Than asking how she was feeling after the treatment. (It is uncontroversial that doing so was standard procedure in the practice);
• The complainant emailed a complaint to the Health Ombudsman the day after the appointment headed “sexually abused in physiotherapy” and which referred to Mr Than “massaging [her] genitals”;
• She contacted a friend, Ms Wilson, immediately after the appointment asking to meet her and when they met the same day, the complainant outlined the alleged conduct;
• The complainant obtained a referral to a new physiotherapist and told him (through a female interpreter she asked to be present) about the alleged conduct.^[22]

33. [33]
    A hung jury is evidence that some people on the jury were not persuaded of guilt beyond a reasonable doubt while others were so persuaded, but it is not of itself evidence that the conduct did not occur.  The evidence of good character from Mr Than’s employer is highly persuasive that the alleged conduct is aberrant for Mr Than, but it carries little weight in seeking to establish that the aberrant conduct is unlikely to have occurred. 
34. [34]
    Mr Than’s admitted criminal conviction is taken by the Tribunal as evidence that he has “committed the acts … which at law constitute [the] offence” of sexual assault as defined in s 352 of the Criminal Code 1899 (Qld).  That is, he has assaulted the complaint (relevantly by touching without consent) and that the assault was indecent (that is, by touching on her genitalia; an act which right minded persons would consider is contrary to community standards of decency).  It is an accepted fact that the alleged conduct occurred during the course of clinical treatment in a room in which Mr Than and the complainant were alone.
35. [35]
    No evidence contained within the transcript of the two criminal trials, including the evidence of Mr Than, persuades me that the conduct constituting the elements of the offences of which Mr Than was convicted did not occur.  Taken together, Mr Than’s material filed in these proceedings falls well short of providing an evidentiary foundation for a conclusion contrary to that which is presumed by s 79(3) of the Evidence Act.

Professional Misconduct?

36. [36]
    While each case must necessarily be judged by reference to its own facts and circumstances, it is difficult to conceive of circumstances where two proven counts of sexual assault occurring during physiotherapy treatment (which axiomatically implies a situation of acute trust in a professional clinician) would not be conduct falling substantially below the relevant standards and, thus, professional misconduct.^[23]
37. [37]
    Mr Than’s conviction of two counts of sexual assault committed during the course of a clinical consultation is in my opinion sufficient of itself to find that Mr Than has engaged in professional misconduct.
38. [38]
    Comparing the instant conduct with conduct in comparable cases for the purposes of sanction, it is in my opinion sufficient to respectfully adopt as the particulars of the conduct what was said by the sentencing Judge:

Mr Than “exposed [the complainant’s] posterior beyond what was clinically required and, in the course of massaging her, on two occasions, … briefly touch[ed] her clitoris”.  The conduct “stopped because of her reaction”.^[24] 

What Sanctions Are Appropriate?

39. [39]
    The Tribunal is cognisant of the principle that the purpose of sanctions is protective and not punitive.  Punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect.^[25]  The health and safety of the public is the paramount consideration in imposing sanctions.^[26]
40. [40]
    Protecting the health and safety of the public includes preventing the same or similar conduct being perpetrated by the particular practitioner in the future.  A number of factors can be seen as relevant to that consideration. 
41. [41]
    They include the past referral history and general character of the practitioner;­­­ whether there is genuine insight into the inappropriateness of the conduct and an appreciation of the importance of relevant ethical standards; whether there is genuine remorse (evidenced, for example by acceptance of t­he conduct and co-operation with the inquiry); and personal circumstances including health or psychological issues.^[27]
42. [42]
    Sanctions directed to the health and safety of the public also have a broader purpose, for example “… making it clear that certain conduct is not acceptable”.^[28]   The Act’s primary consideration also embraces “upholding public confidence in the standards of the profession …”.^[29] Thus, denouncing misconduct:

… operates both as a deterrent to the individual concerned as well as the general body of practitioners.  It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice.^[30] 

43. [43]
    Within those broad principles, each case falls to be considered by reference to its own facts and circumstances.
44. [44]
    Regard can be had to comparable cases with a view to ensuring that the sanction imposed on a particular individual is not out of step with protective sanctions imposed in cases with comparable circumstances, and also as an attempt to maintain a measure of consistency in the role of sanctions in maintaining proper professional standards.
45. [45]
    Aside from comparable cases cited in his written outline, Mr Than’s submissions on sanction are focussed upon his personal circumstances and specific deterrence. 
46. [46]
    As to the former, Mr Than says^[31]:

Having invested 4 years of his life and $32,000 of his personal finances to start a career to help people because of this one allegation, he:

• Has suffered both personal and very public humiliation.
• Has had his name tarnished on the record for life.
• Lost the job that he had trained years.
• Has struggled to get any work at all as a result of the conviction.
• Has spent close to $100,000 defending his innocence.
• Has lost 20% of his personal weight all over what has been over 3 years of torture for him.

47. [47]
    As to specific deterrence and risk, Mr Than points to a number of matters.  He continued to work in the same practice subsequent to the complaint and prior to his conviction subject to a restriction that confined his consultations to male patients.  He points out there is no suggestion that his behaviour toward any patient in the approximately eight years he worked for that employer, including during the restriction period, was anything other than professional.  He also points out that the complainant was referred to him by a previous female patient.
48. [48]
    The letter from his employer earlier referred to attests that during the six years of their association:

… [Mr Than] has been “professional, respectful, diligent, trustworthy and compassionate.  He is well liked by patients and colleagues alike.  He has been the recipient of outstanding patient feedback in this regard …”

49. [49]
    Of course, Mr Than’s submissions are also underpinned by his continued denial of the conduct.  That impacts upon a consideration of his insight and remorse.  The sentencing judge commented, for example, that although Mr Than was “immediately regretful of what [he] had done”:

… you have not demonstrated any remorse since the commission of the offences.  You pleaded not guilty.  The complainant was cross-examined in the course of two trials. You are not to be punished for exercising your right to a trial, but you do not have that mitigating factor of pleas of guilty which are of such significance in cases such as this.^[32]

50. [50]
    The same is analogously true of Mr Than’s position in these proceedings.
51. [51]
    I accept that the matters outlined by Mr Than are relevant in imposing sanction and I have taken them into account.  I consider the following matters are also relevant:

• Mr Than is a young man, aged 26 at the time of the offences.
• He has no disciplinary history.
• His long-term employer speaks highly of an otherwise skilled and caring professional and the instant conduct should be seen as aberrant.
• Despite the continued denial of the subject conduct, he was co-operative with the disciplinary process.
• Consequent upon the failure of Mr Than to renew his registration, he has not practised for about seven months.

52. [52]
    A number of the factors identified by Mr Than address risk of harm by reference to the likelihood of Mr Than behaving in the same or a similar manner in the future.  Based on past behaviour in the context of the matters earlier outlined, it should be accepted that risk is low.  So-called specific deterrence does not weight heavily as a factor in this case.
53. [53]
    However, Mr Than’s submissions fail to appreciate, with respect, that the imposition of sanctions with the primary purpose of protecting of the health and safety of the public has a wider ambit.  It is well established in a long line of decisions, both in this jurisdiction and throughout Australia, that protection of the health and safety of the public extends beyond the specific risk of harm posed by a practitioner.  It encompasses the protection from harm by other practitioners engaging in similar conduct – so-called “general deterrence”. 
54. [54]
    In my opinion, that is a particularly important consideration here.  The public should feel confident that disciplinary bodies, and this Tribunal, will emphasise and seek to uphold the trust the public reposes in health practitioners.  That is particularly true of the particular trust necessarily given to practitioners whose clinical practices involve a secluded private environment and contact with a patient’s body.  Upholding the ethical and professional standards of the profession is crucially important in imposing sanctions for unprofessional conduct.  That is no less so when, as here, the conduct (albeit comprising two offences) occurred on a single occasion.
55. [55]
    I also consider the following matters to be relevant:

• The complainant was “vulnerable due to the nature of the physiotherapist-patient relationship, her lack of familiarity with physiotherapy, her timidity and the fact that English was her second language”.^[33]
• The particular vulnerabilities of the complainant should have been obvious to Mr Than.
• The offences have had a significant impact upon the complainant, causing her ongoing distress.
• The nature of much physiotherapy treatment is based on significant trust in the professionalism of the clinician and the maintenance of professional boundaries; the conduct is a significant breach of each.
• The offences are a clear breach of the physiotherapists Code of Conduct

56. [56]
    The Ombudsman has referred to a number of decisions of the Tribunal said to be comparable.^[34]
57. [57]
    Mr Than disputes that those decisions are comparable “even if he was guilty of what was alleged”.^[35]  His written submissions contain a table of comparable cases, including three of those cited by the Health Ombudsman.  He seeks to draw distinctions with his circumstances suggesting, both implicitly and explicitly, that the cases cited by the Ombudsman are more serious than the circumstances of his case. 
58. [58]
    Two additional cases are cited by Mr Than: Health Ombudsman v Vu^[36] and Physiotherapy Board of Australia v Espedido.^[37] 
59. [59]
    It is said of Espedido, “if any case is similar, it is this one and even the restrictions were removed on appeal to my understanding”.^[38]  No citation is given for any appeal decision and none appears on Austlii in the VCAT Appeals Tribunal or the Victorian Court of Appeal. The Espedido matter has a long history before the Victorian Tribunal. Five further sets of reasons are given by the Tribunal after the 2017 decision referred to by Mr Than.   Separate reasons are given determining facts; classifying the conduct consequent upon factual findings; and, finally, sanction.  
60. [60]
    The latter is the most recent hearing.  It occurred this year.  The conduct in Espedido is much more serious than the conduct here.  Mr Espedido was disqualified from applying for registration as a health practitioner for six years with the Tribunal commenting:^[39]

… we consider that the ‘headline’ disqualification ought to be eight years but have reduced this by two years to recognise, to an extent, the significant period that Mr Espedido has already been out of practice.

61. [61]
    The decision in Vu^[40] relied upon by Mr Than saw a disqualification period of three years – that is, at the upper end of the range contended for by the Board in this case.  It involved conduct by a physiotherapist over three separate treatments: brushing a patients genitals once, skin to skin contact when the (male) patient’s genitals were moved and, on the third occasion, an attempt at fellatio.  There was also obfuscation and deception during the process of investigation.  Overall, the conduct can be seen as more serious than the instant case.
62. [62]
    Although involving a doctor, the sexual conduct in Harirchian^[41] can be seen as comparable to the present case.  The doctor was found guilty of a sexual assault in the District Court and, separately, fraud offences and possession of a drug in the Magistrates Court. The doctor touched the labia and clitoris of a female patient at a consultation for “diarrhoea and feeling unwell”.  Similarly to the present case, the doctor admitted his conviction but continued to deny the sexual assault.  The additional charges and their circumstances give a context more serious than the instant case.  He was reprimanded and disqualified from applying for registration for two years.  Notably, the doctor had been suspended for two years, so that the effective suspension/disqualification was a minimum^[42] of four years. The relevant comparison period here is seven months.
63. [63]
    The decisions to which the Tribunal has been referred by both the Board and Mr Than have been considered together with the matters earlier outlined in arriving at an appropriate sanction.
64. [64]
    In all of the circumstances, I consider Mr Than should be reprimanded and be disqualified from applying for registration as a health professional for a period of two years.

Orders

65. [65]
    The following orders should be made:

1. A finding is made that BRANDAN THAN has engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (Queensland) and s 107 of the Health Ombudsman Act 2013 QLD. (“the Act”)
2. In consequence, pursuant to s 107(3) and (4) of the Act:
   1. The respondent is reprimanded.
   2. The respondent is disqualified from applying for registration as a health practitioner for two years from the date of this order.