Health Ombudsman v RLR[2023] QCAT 552

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal has before it a disciplinary referral filed by the Director of Proceedings on behalf of the Health Ombudsman (‘Applicant’) on 29 June 2022.  The respondent was a registered nurse (‘RN’) at the time of the conduct the subject of the referral.  He was born on 8 September 1960, so is currently 62 years of age.  He was first registered as a RN in Queensland on the 24 December 2013.  Although registered as an enrolled nurse and a RN at the time of the impugned conduct, the respondent was not then employed.
2. [2]
   His registration lapsed on or about 1 July 2021 after he failed to renew his nursing registration.  On 14 February 2021, he was arrested and charged with one count of indecent treatment of a child under 16.  He pleaded guilty to the offence before the Chief Judge of the District Court in the Cairns District Court on 9 March 2022 and was sentenced by his Honour to 12 months imprisonment wholly suspended for an operational period of two years.
3. [3]
   The parties have filed an agreed statement of facts.  There are no factual disputes between them.  They agree that the respondent should be reprimanded and disqualified for applying for registration for a period of 4 years.  The applicant submits that the range as indicated from the comparable cases set out in her submission is between five and seven years and the respondent’s solicitors by reference to the same cases submits that it’s between two to four years.

The relevant facts

4. [4]
   At the time of the offence, the victim child was aged 14 years.  Although the parties agree that the respondent was a relative of the child, it is noted that in the charge which he pleaded guilty, no circumstance of aggravation to that effect is alleged.
5. [5]
   On an unknown date between 4 September 2020 and 28 September 2020, the child was visiting her parent’s home for the weekend.  During that visit, she went to the respondent’s bedroom to use the PlayStation to play a game.  He was then living at the residence.  He entered the bedroom at about 7.00 pm and sat on the bed.  There was some discussion about the game and then the respondent placed his hand on the child’s shoulder.
6. [6]
   He then lay down over her legs and laughed.  He laid with his chest and stomach over the middle of the child’s leg.  He started rubbing her knee with his hand and she told him to stop.  He had his right arm wrapped around and tucked under her knee.  She tried to move away from him but could not free her legs.
7. [7]
   He continued rubbing her knee and moved his hand up to her vagina area.  He rubbed her vagina over her bike shorts with his open hand.  He rubbed from above the clitoris area to the top of her underwear line.  This lasted for about three seconds.  The respondent then grabbed the top of the child’s bike shorts and attempted to pull them down.  The child, using both hands, pushed his hand away and freed her legs and ran out of the room.
8. [8]
   On 12 February 2021, she reported the offence to the Queensland Police Service.  On the following day she provided a statement to the police about those events and on 14 February 2021 the respondent was arrested and charged with the offence mentioned above.
9. [9]
   At the time of the sentencing proceedings before the Chief Judge on 9 March 2022 a victim impact statement from the child was provided to the court.  She stated:

What happened to me destroyed a part of me and my life, I feared all the men around me including my own dad at one point, I thought that what had happened to me was all my fault, and that maybe I could have prevented what happened but now I know it isn’t my fault…

10. [10]
    In sentencing the respondent, the Chief Judge noted the seriousness of the offence and that the offending only ceased when the child managed to free herself and escape.  His Honour considered the effect on her and her parents and concluded that the offence had a severe impact on her life.
11. [11]
    In relation to a number of matters that relate to the jurisprudence as to the meaning of exceptional circumstances in the Penalties and Sentences Act 1992 (Qld), his Honour made certain factual findings and observations and concluded that the respondent should not actually spend time in custody.

Characterisation of the Conduct

12. [12]
    Professional misconduct as defined in section 5(a) and (c) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) means,

[conduct] that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and/or …

[…]

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.

13. [13]
    In Health Ombudsman v Warren,^[1] the Tribunal recently considered the definition of professional misconduct.  Judicial Member Jones commented that, “it must be uncontroversial that the offence of indecent treatment of a child constitutes professional misconduct for the purposes of section 107(b)(ii) of the Health Ombudsman Act 2013 (Qld).”^[2]
14. [14]
    In Health Ombudsman v Flute,^[3] the Tribunal considered the conduct of a RN who was convicted of offences of entering a dwelling house and committing an indictable offence, assault occasioning bodily harm in company and supplying dangerous drugs.  Although clearly offences of a different genre, nevertheless, the comments made by the then Deputy President of QCAT, Judge Allen KC, are apposite in this case:

None of the conduct the subject of the referral occurred in the course of the respondent carrying out the practice of nursing…

The definitions of “unprofessional conduct” and “professional misconduct” in section 5 of the National Law make it clear that such conduct may be  constituted by conduct outside the practice of the health profession.  Health practitioners enjoy the benefits of registration and the obligations of such registration require them to conduct themselves with propriety, not only in the conduct of their profession, but also in their personal life.

The conduct of the respondent, […] fell well below the standard of conduct expected of members of the nursing profession in their personal life and obviously had the real potential to affect public confidence in the members of the nursing profession.  If a member of the profession commits a criminal offence punishable by imprisonment this can reflect adversely on the reputation of the profession and may damage public confidence in it.

The conduct the subject of [the allegations] is completely inconsistent with the obligations of nursing professionals, being members of a caring profession who are expected to help people and who the public reasonably expects to be people that they can trust not to hurt them.^[4]

15. [15]
    The parties agree that the admitted conduct constitutes professional misconduct as defined in the National Law.  Clearly, the respondent’s indecent treatment of the child constituted a serious abuse of trust and a gross violation of the trust she had in him.  It also constitutes a serious abuse of the trust of the child’s parent, who is also related to the respondent.  Such conduct is clearly inconsistent with the respondent being a fit and proper person to hold registration in the profession of nursing.
16. [16]
    As a RN the respondent was required to comply with the Code of Conduct for Nurses in Australia (‘Code of Conduct’), effective from 1 March 2018.  In committing the offence to which he pleaded guilty, the respondent breached a number of principles set out in the Code of Conduct.  Those principles are admissible as evidence in proceedings like this as to proper professional conduct and practice.
17. [17]
    The Tribunal is satisfied to the requisite standard that the admitted conduct constitutes professional misconduct as defined in section 5(a) and (c) of the National Law.

Sanction

18. [18]
    The main guiding principle is that that the health and safety of the public are paramount.  The purpose of this proceedings is to protect not to punish.
19. [19]
    Sanction in disciplinary proceedings is designed not only as a specific deterrent to the relevant practitioner, but also as a general deterrent to practitioners protecting the public from those who may consider that behaving in a similar way.  It also maintains public confidence in health professionals by promoting proper ethical and professional standards.
20. [20]
    In the particular circumstances of a case when determining sanction, the Tribunal needs to take into account the facts of that particular case.  It may consider factors including the nature and seriousness of the practitioner’s conduct; insight and remorse shown by him or her; the need for specific and general deterrence; any evidence of steps taken by the practitioner to mitigate the risk of reoccurrence of the conduct which is relevant both to insight and the Tribunal’s assessment of future risk; mitigating factors such as evidence of matters which may give context to the conduct, for example mental health issues; and other matters including past disciplinary history, police history, character evidence, periods of preclusion and/or non-practice and cooperation during the disciplinary proceeding.
21. [21]
    The respondent’s indecent treatment of the 14-year-old victim was objectively serious.   There was a significant power imbalance between them.  She was very young and a relative of the respondent.  He exploited this power imbalance for his own sexual gratification.
22. [22]
    As noted earlier, his conduct constituted a gross violation of a child and was completely inconsistent with the professional and ethical obligations of a RN.  Not only did his conduct constitute a breach of her trust but also of her parents who believed she would be safe when alone with him.
23. [23]
    At the time of the offence, the child was in the respondent’s bedroom and the respondent placed his body on top of her legs and wrapped his right arm around and tucked underneath her knees so that her legs were trapped.  As noted by the Chief Judge, the misconduct or the sexual offending only ceased because the child managed to free herself and escape.  But she had made it clear to him that she did not agree with his sexual advances.
24. [24]
    The offence and its aftermath have caused significant and ongoing distress to the child.  The parents also provided victim impact statements to the Chief Judge, which are before the Tribunal and clearly, they have also suffered considerable distress as a result of his conduct.
25. [25]
    In relation to insight, the respondent has pleaded guilty at an early stage of the criminal proceedings and thereby saved the child and their parent from having to give evidence in a criminal trial.  He has expressed remorse for his conduct to his treating psychologist and to Dr Bala, the psychiatrist who assessed him for the purposes of a pre-sentence report.  He apologised to her in a pretext telephone call that she made to him at the best of police.  He has attended a number of sessions of counselling with a psychologist and I am told today by his solicitor that he has reactivated psychological sessions with a therapist.
26. [26]
    He has demonstrated some insight into his offending by conduct by his engagement in the disciplinary process and agreeing to a statement of facts and cooperating with the Tribunal.
27. [27]
    Although there is evidence from the Tribunal that he was suffering from major depression and anxiety at the time he was assessed in February 2022, it is not unclear but probably inferentially can be stated that he was suffering from this condition at the time of the offence.  However, his psychiatrist found there was no direct correlation between the offending behaviour and his mental state.  Perhaps the most significant factor in the case like this is the need for deterrence in disciplinary proceedings.  Although as noted his conduct occurred outside the professional practice as a registered nurse, there are aspects of his conduct that are directly relevant to his fitness and propriety to be a member of the profession.
28. [28]
    It is crucial to maintain public confidence and trust in the nursing profession and uphold its professional standards.  The conviction of a nurse for an offence of indecent treatment of a child in itself is likely to undermine trust in the nursing profession and it’s necessary for the sanction to reflect that and to uphold appropriate standards both in a registered practitioner’s professional life but also in his or her personal life.
29. [29]
    Although of some minor relevance given the registration status of the respondent to which I will refer later in these reasons specific deterrence has a minor role to play in my view.  In its submissions, the applicant has referred to a number of comparable cases.
30. [30]
    In Health Ombudsman v Warren,^[5] the Tribunal considered the conduct of RN who was convicted of her own plea of guilty of the indecent treatment of a 12-year-old boy who was known to the practitioner and her husband.  The matter was complicated by the practitioner’s husband also being convicted of offences in relation to the same child. The practitioner was suffering from significant anxiety and depression at the time of the offence, and she had ceased practising as a nurse in April 2016, five years before the Tribunal hearing.  The Tribunal found that the conduct constituted professional misconduct and she was reprimanded, and the Tribunal ordered a disqualification period of five years which is in effect a total preclusion period of eight years. The Tribunal also ordered that the respondent be prevented from providing any health services to children under 18 years until she obtains registration as a health practitioner under the National Law.  No order under section 107(4)(b) of the HO Act is sought by the Applicant in this case.
31. [31]
    In Nursing and Midwifery Board of Australia v Burrows,^[6] the Tribunal considered a RN conviction for a historical offence of indecent treatment involving an eight-year-old child in her own home. The practitioner had been sentenced to two years imprisonment with the sentence suspended after he  served six months. The Tribunal found that the practitioner’s conduct constituted professional misconduct and ordered that his registration be cancelled, and a disqualification period of four years (noting that this amount to seven years and six months away from practice in total). The practitioner was also reprimanded.
32. [32]
    Recently, in Health Ombudsman v Galloway,^[7] the Tribunal considered the conduct of a paramedic who was convicted of two counts of indecent treatment of a child and attempted indecent treatment of a child under 16. The conduct involved the practitioner exposing a 13-year-old girl and her 14-year-old friend to an indecent act in attempting to persuade one of the girls to perform oral sex in the context of performing his professional duty.  In that case, his registration was cancelled and a disqualification period of two years noting that this amounted to four years away from practice in total was ordered.  He was also reprimanded.
33. [33]
    Mr Magoffin, on behalf of the respondent, in his submissions refers to the fact that his client has not practised as a health practitioner since April 2016, so for a period of seven years. On 26 March 2021, the Health Ombudsman took immediate registration action and imposed conditions on the respondent’s registration. Those conditions prevented him from having contact with patients under the age of 18 years and also prevented him from having contact with female patients at any stage.
34. [34]
    As noted in the agreed facts and confirmed by submissions from the respondent’s solicitor, although registered as an enrolled nurse and RN, at the time of the conduct he was not employed as a nurse. The respondent did not renew his registration in 2021 and on 7 September 2021, the Health Ombudsman removed the conditions on the respondent’s nursing registration on the basis that he was no longer registered as a nurse because he had failed to renew his registration.
35. [35]
    In a statement attached to his response, the respondent indicates that he has no intention of seeking to re-register as a RN or registered health practitioner and has retired from working for medical reasons in any event.
36. [36]
    When taking into account all those factors and for the reasons stated, the Tribunal makes the following orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (HO Act), the admitted conduct amounts to professional misconduct;
2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
3. Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a health practitioner for a period of 4 years; and
4. No order as to costs.