TPI v Health Ombudsman[2023] QCAT 554

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Preliminary determinations

1. [1]
   In this matter, the Tribunal has been handed evidence of further allegations made against the applicant since the proceedings commenced before the Health Ombudsman.  Both parties agree, and it is supported by caselaw, that in Queensland, the Tribunal may receive evidence that bears directly on a question in issue even though such evidence was not available when the original decision was made.^[1]
2. [2]
   Here, the Tribunal is now in possession of two further allegations against the applicant.  So, the Tribunal will allow receipt of the documents handed up this morning.
3. [3]
   As a preliminary matter, I’ll deal with the question of the proper construction of section 58 of the Health Ombudsman Act 2013 (Queensland) (‘HO Act’).  The respondent seeks to rely on sections 58(1)(a) and (d) of the HO Act.  Section 58(1) provides power to take immediate registration action:

1. the health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if—

1. the health ombudsman reasonably believes that—

1. because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and

2. it is necessary to take the action to protect public health or safety; or

[…]

4. the health ombudsman reasonably believes the action is otherwise in the public interest.

4. [4]
   An example given by the HO Act, which is that a health practitioner is charged with a serious criminal offence, unrelated to the defendant’s practice.  It is true that in the exercise of statutory interpretation, the Acts Interpretation Act 1954 (Qld) provides that if an Act includes an example of the operation of a provision –^[2]

   1. the example is not exhaustive; and
   2. the example does not limit, but may extend, the meaning of the provision; and
   3. the example and the provision are to be read in context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.
5. [5]
   As a matter of statutory interpretation, it is also to be accepted that if there are words used in a provision, they should be taken to be meant to be used. In this particular case, the word ‘otherwise’ must have a meaning.  Counsel have informed the Tribunal that there have been different interpretations of such a section as section 58(1)(d) in many jurisdictions, and the Health Ombudsman requires reasons of its wide application.
6. [6]
   The applicant has referred the Tribunal to the Health Ombudsman v Harirchian.^[3]  That was a different matter factually, but at [10], the Court of Appeal commented on the legislation and said as follows:

The action which the Health Ombudsman took in relation to the respondent was to suspend his registration pursuant to s 58(1)(d).  The discretion arises if the Health Ombudsman ‘reasonably believes’ that a suspension ‘is otherwise in the public interest’.  The word ‘otherwise’ signifies that the Health Ombudsman reasonably believes that the action is required in the public interest for reasons other than those specified in section 58(1)(a), (b) and (c).  Apart from subsections 58(1)(b) and (c), which relate to issues to do with the status of the registration itself, s 58(1)(d) contemplates that it may be in the public interest to suspend a practitioner’s registration notwithstanding that he or she does not pose ‘a serious risk to persons’ and although there is need to take action to ‘protect public health or safety’.  The paradigm example is contained in the note to that subsection […].  It follows that it is a fortiori that it may be appropriate to suspend registration in order to maintain public confidence in the provision of health services if a health practitioner has actually been convicted of a serious criminal offence.

7. [7]
   In my mind, that paragraph points directly to the issues I raised during the argument and that is what the word ‘otherwise’ means in section 58(1)(d).  It has been suggested that it’s not entirely necessary for the Tribunal to make a ruling in respect of this because it could be dealt with by saying that the finding under section 58(1)(a) is sufficient to accept or dismiss the proposed condition.  But the ruling is that section 58(1)(d) does not apply in this case.

Substantive decision

8. [8]
   I go now to the nature of the hearing.  The applicant seeks a review of a decision made on 26 May 2022 by the Health Ombudsman to take immediate registration action against the applicant and to suspend his registration as a medical practitioner. 

Background

9. [9]
   The applicant is alleged to have unlawfully sexually treated or assaulted four young female patients while treating them.  The first patient, NT, was a 15-year-old female at the time.  At the appointment she alleges the applicant touched her breast under the shirt but over the bra.  It should be noted he prescribed medication for a mental health issue on that occasion which was 10 February 2022.
10. [10]
    The second patient, AMR, was a 17-year-old female when, on 22 April 2022, during a consultation for a mental healthcare plan she alleges the applicant touched her under the shirt but over the bra and on the buttocks over her clothing. 
11. [11]
    He has been committed for trial in respect of those two complainants.
12. [12]
    The Tribunal is told that two other charges were referred last week.  One relates to a third patient who, on a date that is probably in the first part of 2022, alleges the applicant fondled her breasts when she was wearing and not wearing a bra.  Records indicate that she too had mental health issues.
13. [13]
    There is now a fourth complainant who is said to make similar allegations but there is no statement before the Tribunal at the present time. 
14. [14]
    The respondent submits that the decision to suspend the applicant’s registration was correct because:

    1. the allegations raise a reasonable belief that he may sexually assault future young female patients (i.e., a serious risk); and
    2. the suspension is necessary to protect future young female patients from sexual assaults and/or psychological harm.
15. [15]
    In addition, the respondent submitted that the allegations raise a reasonable belief that the suspension is necessary to maintain public confidence in the profession and not to discourage patients from seeking medical treatment (i.e., in the public interest).  However, take note of the ex tempore decision I have just given on that fact.  The respondent says that the risks are that the applicant:

    1. will treat and sexually assault young female patients;
    2. will treat a patient who is a victim of sexual assault and therefore cause psychological damage; and
    3. might provide inappropriate care or advice to such a patient.
16. [16]
    Originally, there were two other submissions:

    1. that members of the public, particularly sexual assault victims, will be reluctant to attend the applicant’s practice; and
    2. members of the public will lose confidence in the profession.
17. [17]
    The first matter is unlikely in light of the proposed condition because he would not be consulting with any female patients in particular.
18. [18]
    The applicant’s submission is as follows: upon review of the decision, the correct and preferrable course is to make a condition of his registration that restricts his opportunity to consult with male patients to telehealth consultations until such a condition is varied by order of the Tribunal or agreement.

The original findings of the Ombudsman

19. [19]
    The decision quoted section 58(1)(a) of the HO Act which provides for immediate suspension if the Ombudsman reasonably believes that the conduct poses a serious risk to persons, and it is necessary to take the action to protect public health and safety.  The Ombudsman quoted WD v Medical Board of Australia^[4] and decided that it was open to form a reasonable belief based on the Queensland Police Service information; that is not a contested view and is clearly correct.  The Ombudsman decided that the applicant posed a serious risk to persons and said at [25]-[26] of the submissions that the Ombudsman observed the obligation to take into account the least onerous action against the applicant but stated that the proposed condition was the least onerous action.
20. [20]
    In the view of the Tribunal, the Ombudsman did not purport to evaluate other causes of action in coming to that assessment.  In its submission, the respondent also acknowledges that immediate action should take a form which protects the public interest with as little damage to the practitioner as is consistent with the protection of the public.  The Ombudsman also acknowledges there is a public interest in allowing trained health practitioners to continue to practice in that there is a public interest in allowing ‘area of need’ professionals to practice.  The applicant submits that the onus is on the respondent to show the original condition is the correct and preferable one; that submission is accepted. 
21. [21]
    The applicant submits that the decision did not reach a balance of the matters to be considered in that it gave:

    1. incorrect weight to the risk and, at that time, to the public interest; and
    2. insufficient weight to the impact on the practitioner and area of need. 
22. [22]
    The applicant points out that the applicant has no criminal history.  He has no prior disciplinary history.  He denies the offences which have not yet been tested at all by cross-examination.  He is under considerable financial distress being unemployed since the suspension, and that the new proposed condition answers the needs set out above.  There is nothing to suggest that the applicant would not comply with the condition which he has suggested. 
23. [23]
    There is a public interest in a proportionate response, particularly where a matter is unlikely to finalise quickly.  It is very clear that these matters are unlikely to finalise quickly and more likely, will take some years to finalise.  The Tribunal is not in a position to assess the merits or the strength of the prosecution case in the criminal matters, and as I say, the evidence apart from cross-examination is yet to be tested generally. 
24. [24]
    The Tribunal must keep in mind that there is a presumption of innocence which must be recognised and that in coming to assess public reaction, there is a need not to adopt what has been described in the cases as ‘visceral’ or a response which is not reached by careful analysis.  Any immediate action ought to be least onerous to address the relevant risk.  As Judge Horneman-Wren SC observed in Pearse v the Medical Board of Australia:^[5]

Whilst the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated. 

25. [25]
    The risk set out by the respondent at [3] of its submissions would be ameliorated, if not negated, by the proposed condition.  The applicant in setting out the considerations at [11] suggests that the respondent has formed a clear view that the allegations have already been proved and adopts a somewhat punitive tone which does not accord with the appropriate principles.  In all the circumstances, the orders of the Tribunal are as follows.

1. The decision of the Health Ombudsman dated 26 May 2022 to suspend the applicant’s registration as a medical practitioner is set aside.
2. The Tribunal imposes on the registration of the Applicant the conditions set out in Schedule 1 to this decision.
3. Each party to the proceedings is to bear their own costs.

Schedule 1 – Conditions

Scope of practice

1. The practitioner must not practise as a registered health practitioner, with the exception of contact with male patients using telehealth platforms. 

Practitioner acknowledgment

2. Within three (3) business days of the commencement of these conditions, the practitioner must provide acknowledgement to the Office of the Health Ombudsman, by completing and submitting the Practitioner acknowledgement form, that they understand they must comply with the requirements of condition 1.

Employment

3. Within five (5) business days of the commencement of these conditions and commencing in any new place of practice, the practitioner must complete and submit an Employment Advice form, to advice the Office of the Health Ombudsman of the details of any and all places (practice locations) where the practitioner provides a health service (practises) as a health practitioner. 
4. Within five (5) business days of the commencement of these conditions and commencing in any new place of practice, the practitioner must provide to the Office of the Health Ombudsman a completed Employer acknowledgement form from all employers and/or places where the practitioner practises as a health practitioner, certifying they are aware of the conditions imposed on the practitioner’s registration and have been provided with a copy of this Schedule of Conditions.

General forms for submission

5. Within five (5) business days of the commencement of these conditions (if the practitioner is the owner of a practice or entity that provides a health service) or within five (5) business days of becoming an owner of any practice or entity that provides a health service, the practitioner must provide written authorisation to the Office of the Health Ombudsman (by completing the Authority to access information form) to inspect, take or copy patient clinical records, log books and/or appointment diaries for any patient at such reasonable time or times as the Health Ombudsman shall determine for the purpose of monitoring compliance with the conditions imposed on the practitioner’s registration.
6. Within five (5) business days of the commencement of these conditions, the practitioner must provide written authorisation to the Office of the Health Ombudsman (by completing the Authority to share information form) to exchange information with the practitioner’s employers and/or places of practice to ensure compliance with the conditions imposed on the practitioner’s registration.
7. Within five (5) business days of the commencement of these conditions, the practitioner must provide written authorisation to the Office of the Health Ombudsman (by completing the Authority to release information form) to obtain the release of information relating to the practitioner’s professional practice and/or prescribing from:
   1. the Department of Health, Queensland Government;
   2. Services Australia;
   3. private health insurers;
   4. any other entity who may provide information relevant to the practitioner’s professional practice and/or prescribing.

Other matters

8. Within five (5) business days of changing residential address, email address or contact telephone number, the practitioner must provide written notification to the Office of the Health Ombudsman of that change and provide new contact details.
9. The practitioner must immediately advise the Office of the Health Ombudsman if at any time they are charged with an indictable offence.
10. If, in the event of a medical emergency, the practitioner is unable to comply with a condition, any such incident must be notified to the Office of the Health Ombudsman within three (3) business days.  For the purposes of these conditions, a medical emergency is an incident where it is not possible or reasonable to have a patient with a serious or life-threatening condition seen by another practitioner or transferred to the nearest hospital. 

Period of Conditions

11. These conditions continue to have effect until:
    1. Further order of the Tribunal following an application by, either the practitioner or the Health Ombudsman, or referral by the Health Ombudsman to the Tribunal; or
    2. The Health Ombudsman removes the conditions under section 65 of the Health Ombudsman Act 2013 (Qld).

Costs

All costs associated with compliance with these conditions are at the practitioner’s own expense.

Definitions

‘Contact using telehealth platforms’ is defined as any contact between the health practitioner and a patient (including consultation, interview, examination, assessment, prescribing for, advising, or other treating a patient) where the health practitioner and patient are not in the same room as each other and use technology to be able to see and/or communicate with each other.