Health Ombudsman v YDU[2023] QCAT 493

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 25 August 2022 the respondent pleaded guilty to three crimes against the Commonwealth Criminal Code. Each related to child exploitation material. A head sentence of 15 months imprisonment was imposed with other terms of imprisonment to run concurrently. He was released on a recognisance to be of good behaviour and placed on two-years’ probation.
2. [2]
   When the offences were committed, the respondent was a registered nurse,^[1] working as such at a major Brisbane hospital. The charges resulted in an immediate suspension from that post. Subsequent investigation and action by the Health Ombudsman lead ultimately to this referral to the Tribunal.
3. [3]
   The Health Ombudsman contends that the respondent’s conduct should be seen as “professional misconduct” and seeks orders for cancellation of his registration and an order disqualifying him from applying for registration for “between two and three years”.
4. [4]
   The respondent does not formally respond to either of those contentions. However, in an affidavit before the tribunal he says:

“… my actions are deemed below the professional ethical standards expected of a nurse. I realised that I had betrayed the trust that underpins the nursing profession and it is both morally wrong and illegal to access such material regardless of the reason.”

5. [5]
   In his response, the respondent says, “should I not get my licence back, at least grant my non-publication order request.”

What is the nature of the conduct?

6. [6]
   The relevant particulars of the conduct the subject of these proceedings can be seen summarised in the sentencing remarks of the Chief Judge.
7. [7]
   The child abuse material consisted of 715 images located on the respondent’s laptop. That conduct founds one criminal charge. The other criminal charges derive from the respondent transferring the material, on 30 separate occasions, between personal devices via his own email account.
8. [8]
   The Chief Judge described the case as “of moderate level seriousness”. The sentencing remarks note that the respondent did not distribute the material to anyone or, for example, post it to the internet; the material moved only between devices using his own accounts. There was, nevertheless, “some deliberateness” in the use of the material.

How should the conduct be classified?

9. [9]
   “Professional. Misconduct” is defined in s 5 of the National Law as “unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.” It can also be established by “more than one instance of unprofessional conduct which, when considered together, amount to” conduct of that description.
10. [10]
    “Unprofessional Conduct” is also a defined term. The s 5 definition is non-exhaustive and includes:

3.  the conviction of the practitioner of an offence under another act the nature of which may affect the practitioner's suitability to continue to practise the profession

11. [11]
    The offences of which the respondent has been convicted are serious. As has frequently been observed both by the Tribunal and by sentencing courts, offences of this type are not “victimless”; the relevant images don’t exist unless children have suffered degrading abuse.
12. [12]
    The offences carry with them significant community abhorrence. That is all the more so, of course, because at their heart is the abuse and exploitation of children.
13. [13]
    It has previously been said by the Tribunal that “criminal conduct of such a type is completely inconsistent with the fundamental obligations of health practitioners to help people, rather than hurt them”.^[2] At heart, the nursing profession is, and is plainly seen by the community as, a caring profession. Offending of this type strikes at the very heart of that perception.
14. [14]
    A number of specific provisions of the Code of Conduct for nurses refer specifically to obligations on the part of nurses to adhere to the law. Nurses are also reminded that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.
15. [15]
    Importantly, the Code also recognises that a failure by nurses to act honestly and ethically or engage in unlawful behaviour has the capacity to “damage the reputation of the profession”. The Code also points out that “caring for those who are vulnerable brings legislative responsibilities” which includes abiding by mandatory reporting requirements including of course relating to child abuse and neglect.
16. [16]
    It cannot seriously be doubted that the subject conduct is conduct of a lesser standard than would reasonably be expected of a nurse by the public and a nurse’s professional peers. It is clearly “unprofessional conduct” as defined. That is true of the conduct founding each of the three offences of which the respondent was convicted.
17. [17]
    A finding of professional misconduct requires a finding that this unprofessional conduct is “substantially below” the specified standard. “Substantial” departure from the standard requires a “large or considerable departure”.
18. [18]
    A number of considerations can be relevant and “the tribunal is required to make a judgement as to the decree of departure from the standard reasonably expected of the practitioner by the public of the practitioner’s peers”.^[3]
19. [19]
    The matters earlier outlined, taken together, render the instant conduct as falling substantially below the specified standard.
20. [20]
    Professional misconduct is established and a finding to that effect will be made.

What is the appropriate sanction?

21. [21]
    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.^[4] The health and safety of the public is the paramount consideration in imposing sanctions.^[5]
22. [22]
    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.
23. [23]
    They include the past referral history and general character of the nurse; 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.^[6]
24. [24]
    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”.^[7]  The Act’s primary consideration also embraces “upholding public confidence in the standards of the profession …”.^[8] 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”.^[9]
25. [25]
    Within those broad principles, each case falls to be considered by reference to its own facts and circumstances. 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.
26. [26]
    The written submissions of the Health Ombudsman helpfully refer to a number of earlier decisions of the Tribunal which are said to be comparable. The decisions referred to point to the range of disqualification submitted by the Health Ombudsman as being reasonable in the instant circumstances.^[10]
27. [27]
    The decision in Health Ombudsman v Creagh-Scott^[11] involved offending of a similar type. However, the nature and extent of the offending can be seen to be more serious than the instant case. There the nurse shared images and the material was particularly disturbing in nature, including “images of abuse; sexual presentation and aspects of sadism”. The tribunal noted that he had made full and frank admissions; surrendered his registration; made early pleas of guilty; and had made extensive efforts to obtain and continue with treatment and counselling. He was disqualified from applying for registration for a period of three years and six months.
28. [28]
    The following factors are considered relevant to the assessment of sanction:

• The conduct the subject of the offences is serious;
• The conduct is viewed by the public as particularly repugnant and antithetical to the tenets of the nursing profession;
• The respondent is a young man aged almost 28, aged 25 at the time of offending;
• He has no other disciplinary history;
• His plea of guilty came at a particularly early stage and the sentencing judge accepted the respondent had demonstrated a willingness to accept responsibility for his actions;
• The sentencing judge also accepted that he was remorseful and deeply regretted his offending;
• The respondent has not worked in the health care industry since September 2021 and his registration has remained suspended for about two years;
• He has no present plans to work again as a nurse or otherwise within the health care industry (he has retrained in and is currently employed in, another industry);
• in the longer term, he is unsure whether he may want to work again as a nurse.

29. [29]
    The respondent’s psychological health and past and current psychological issues are also important relevant considerations. The Tribunal has taken account of, and accepts, unchallenged evidence from a forensic psychologist, Nick Smith, contained within his report before the Tribunal.
30. [30]
    The report records the respondent having a “history of pornography addiction that resulted in the accumulation of approximately 500 gigabytes of adult pornography on his computer”.  The addiction developed “as a result of attempts to cope with long term anxiety and depression … concurrent with an increasing pattern of social withdrawal and avoidance of others … his pornography use became more expansive overtime and he became less discriminating in what he accessed and saw”.^[12]
31. [31]
    At the time of the report, treatment was continuing and the respondent “has made considerable efforts to address his offending behaviour …while also working to stabilise his mental health …”.^[13] The psychologist could detect no evidence for persisting paedophilic arousal, opining that the respondent’s “… mental health issues led to a degree of isolation and maladaptive coping that skewed his judgment and perception around the material he was viewing on the internet”.^[14] 
32. [32]
    The evidence before the Tribunal is to the effect that the respondent is genuinely remorseful and ashamed of his criminal behaviour; has reasonable insight into his offending behaviour and its repugnance; and has taken responsibility for his offending. I accept the respondent shows reasonable prospects of continuing to address the psychological issues underlying his behaviour.
33. [33]
    I consider “general deterrence” is particularly important to the imposition of appropriate sanctions in this case. The sanction should indicate to the public at large that behaviour of this type is repugnant and at odds with the behaviour and character expected within the nursing profession. Doing so has an important role in the protection of the health and safety of the public by maintain public confidence in the nursing profession.
34. [34]
    In all of the circumstances the Tribunal considers the respondent should be reprimanded and his registration cancelled.
35. [35]
    The Tribunal considered whether a suspension of the respondent’s registration is more appropriate than cancellation. I was assisted by discussion with the assessors relating in particular to the consequences of cancellation as distinct from a continuation of a period of suspension.
36. [36]
    Cancellation will require the respondent to reapply for registration should he wish to re-join the profession. At that time the Board will consider whether he is then a fit and proper person to be granted registration. That allows consideration of both the antecedent behaviour to which these proceedings relate; the ongoing treatment which the respondent concedes he needs and to which he says he is committed; and any other then relevant considerations. 
37. [37]
    Consequent upon that cancellation, the respondent should be disqualified from for registration for a period of three years. In arriving at that period I have considered the matters earlier outlined and also the fact that the effect of such a suspension will see the respondent excluded from the profession for a minimum of five years.^[15] I consider that to be appropriate.

Should a non-publication Order be made?

38. [38]
    The respondent made application to the tribunal for a non-publication order pursuant to section 66 of the QCAT Act.^[16] The basis of that application was the asserted detrimental impact that publication was likely to have both on the respondent’s psychological issues and the ongoing treatment for them. That application was whole “wholeheartedly supported” by his treating psychologist. 
39. [39]
    On 25 May 2023 Deputy President Dann made an interim order to that effect.
40. [40]
    I accept the evidence of the respondent’s treating psychologist as to the importance of the order continuing in maintaining and improving the respondent’s mental health. The order is not opposed by the Health Ombudsman.
41. [41]
    It is appropriate that a final non-publication order in relevantly similar terms to the order made by her Honour.

ORDERS

1. The conduct of the Respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
4. An order pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent’s is disqualified from applying for registration as a health practitioner for a period of three years.
5. An order pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) that the immediate registration action imposed by the Health Ombudsman on 8 September 2021 is set aside.
6. No order as to costs.
7. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
   1. The contents of a document or other thing filed in or produced to the Tribunal;
   2. evidence given before the Tribunal;
   3. any order made or reasons given by the Tribunal; and
   4. any other information,

is prohibited to the extent that it could identify or lead to the identification of the respondent, [YDU], save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal arising from these proceedings and for the Nursing and Midwifery Board of Australia to provide information to the Office of the Health Ombudsman in the exercise of the Board’s functions under the Health Practitioner Regulation National Law (Queensland).