Health Ombudsman v Timchur[2023] QCAT 549

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral of disciplinary proceedings in respect of the respondent, pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

The grounds

2. [2]
   The respondent was:

   1. registered as a chiropractor with a Chiropractic Board of Australia (‘Board’);
   2. a health service provider within the meaning of section 8(a)(i) of the HO Act; and
   3. subject to the registration standards, codes and guidelines approved by the board.

The allegations

3. [3]
   Allegation 1 is that on 29 June 2021, the respondent sexually assaulted a patient at the practice where he worked.  On 3 July 2021, the patient reported the matter to police.  On 27 July 2021, the respondent was charged.  On 31 July 2021, the respondent surrendered his registration.  On 4 July 2022, the respondent pleaded guilty in the Magistrates Court of Queensland to one count of sexual assault and on the same day, was sentenced to nine months’ imprisonment wholly suspended for 18 months.  On the 23 September 2022, the conduct was referred to the Director of Proceedings and the matter was referred to the Tribunal.

Agreed Statement of Facts

4. [4]
   The parties have agreed on the statement of facts and there are no factual issues in dispute.  The respondent concedes his behaviour amounts to professional misconduct, that is, ‘conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’.^[1]
5. [5]
   In Health Ombudsman v Chang,^[2] the Tribunal, when making a finding of professional misconduct, noted:^[3]

Sexual assault by a practitioner of a person who has attended the practitioner for treatment is a very serious matter […] It is clearly conduct which is significantly below the standard to be expected of a registered health practitioner.

Seriousness of the Conduct

6. [6]
   The patient was vulnerable, she was alone in the practice, and not surprisingly has been significantly impacted.

Purpose of the Proceedings

7. [7]
   Disciplinary proceedings are protective, not punitive, in nature.  Nevertheless, it is proper that the Tribunal consider the likelihood of recidivism, general and specific deterrence, insight and remorse.
8. [8]
   General deterrence is important in order to demonstrate to other health practitioners that this type of conduct will not be tolerated and will put their ability to remain practising at risk.  Here, personal deterrence and recidivism are less important as the respondent has surrendered his registration and says that he has no intention of returning to practice as a chiropractor.
9. [9]
   The respondent has demonstrated some insight and remorse.  He pleaded guilty and offered to pay compensation.  He provided a written apology to the plaintiff.  He filed an affidavit accepting full responsibility for his actions.
10. [10]
    However, there is no evidence he has sought treatment from any health professional in relation to his mental condition.  He has provided an affidavit as to what he is presently doing or was doing as at the date of 29 March 2023.  He says if he does reapply, it would be in relation to providing clinical advice on diagnostic imaging for the company he founded and was previously a director of - Professional Radiology Outcomes.^[4]
11. [11]
    He says that at that time, he was spending a large portion of his time devoted to his children because he and his wife had separated upon this conduct being revealed.  He said at that time, he was currently unemployed, however receiving a set stipend as a contractor for the business and marketing support of Professional Radiology Outcomes.
12. [12]
    The Tribunal has been provided with comparable cases, and the parties have agreed upon an appropriate sanction.  It would be unusual, if not exceptional, for the Tribunal to depart from the proposed sanction unless it falls outside the permissible range, which it does not.
13. [13]
    In those circumstances, the Tribunal makes the following findings and orders:

1. The conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the HO Act.
2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
3. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying from applying for registration as a registered health practitioner for a period of three years.
4. No order as to costs.