Health Ombudsman v Chalmers[2023] QCAT 96

REASONS FOR DECISION

1. [1]
   The Director of Proceedings on behalf of the Health Ombudsman seeks the following Orders:

   1. (a)
      a finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act^[1];
   2. (b)
      an order pursuant to section 173A of the Health Ombudsman Act^[2] that the respondent is reprimanded;
   3. (c)
      an order pursuant to section 107(4)(a) of the Health Ombudsman Act^[3] that the respondent is disqualified from applying for registration as a registered health practitioner for a period of between five and six years;
   4. (d)
      an order pursuant to section 107(4)(b)(i) of the Health Ombudsman Act^[4] that the respondent is prohibited from providing health service in a paid or unpaid capacity, in a clinical or non-clinical capacity, until such time as he obtains registration as a health practitioner. 
2. [2]
   No order as to costs is sought.
3. [3]
   The application follows the respondent’s conviction for three offences of indecent treatment of an eight to nine-year-old girl.  He was an enrolled nurse at the time of his offending but had subsequently been deregistered.  The respondent, who was 60 to 61 at the time of this offending, had become an enrolled nurse in 2009 and was a registered health practitioner for the purposes of the National Law^[5].  He worked in the emergency department of Cairns Base Hospital.
4. [4]
   The offending occurred in 2019 and 2020.  The respondent was a close family friend of the child’s family.  He was in many ways seen as a step-grandfather.  The offending set out in the sentencing remarks of his Honour Judge Rafter SC involved the respondent, on three separate occasions, have the child masturbate him.  On two of those occasions, he ejaculated on her hand.  The respondent also, on two of those occasions, placed his hand on the child’s vagina and rubbed that area, albeit on the outside of her underclothes.
5. [5]
   On the last occasion, he was interrupted by the child’s stepfather, who confronted the respondent.  The respondent, who ultimately pleaded guilty in the criminal court, denied any wrongdoing.  He subsequently refused to participate in a record of interview with police.  His plea, whilst described as timely by the Judge, was only very shortly before the pre-recording of the complainant child’s evidence.  It is, in my view, significant that his conduct ceased because of interruption by the child’s stepfather and not voluntarily.
6. [6]
   Another feature of the case that I consider important is that I have been provided with nothing whatsoever to indicate the respondent has at any time sought medical or psychiatric treatment or done anything to ensure he does not otherwise ever again abuse children.  There was no such material before the sentencing Judge. 
7. [7]
   I interpose, in case the respondent was ever to apply for registration as a nurse in the future and to assist generally with such matters, that it is my view that a person who sexually abuses children and does nothing to address whatever condition may have induced him or her to engage in such abuse should not ever, except perhaps in a very exceptional case, be re-registered into a profession that allows contact with children.  It is, in my view, a sign that this behaviour has not been taken seriously by the perpetrator and/or that he does not recognise that without such treatment, he is at risk of again re-offending.
8. [8]
   And, of course, it is not just from the respondent that the public is to be protected.  All health practitioners and others who deal with children in their work must be deterred from engaging in abusive conduct.  In a recent decision of this Tribunal in the Health Ombudsman v Harish Shetty, Judicial Member McGill spoke about the notion of rehabilitation and the need for evidence which supports an inference that there is a likelihood the respondent will ever be able to justifiably command the confidence of the public in him to work as a health practitioner.^[6] 
9. [9]
   In that regard, I note also observations of Keane J, as his Honour then was, in Medical Board of Queensland v DAP [2008] QCA 44. There is much to be said for his Honour’s observations in that case. Where a practitioner engages in offences of child abuse and does nothing to address the motivation for such conduct, either upon his apprehension, prior to sentence or prior to determination of an application of this sort in the tribunal it can be said:

The evidence before the tribunal does not support an inference that there is a likelihood that the respondent will ever be able justifiably to command the confidence of the public in him as a (health) practitioner.^[7]

10. [10]
    Ultimately, however, in the circumstances of this case and particularly where the respondent:

    1. (a)
       is 64 years of age;
    2. (b)
       has filed no material in the Tribunal;
    3. (c)
       has appeared only by video link and has made no submissions;
    4. (d)
       has been provided with submissions from the applicant indicating it seeks a disqualification for a period of five to six years;
    5. (e)
       is inherently unlikely at age 70 to seek to be re-admitted into the nursing profession;
    6. (f)
       would then have not been practising as an enrolled nurse from January 2020 and so would have enormous difficulties with the requirements of registration; and
    7. (g)
       would in any case need to overcome the force of these reasons to show that his circumstances are such that he should be readmitted to registration as a nurse,

I have determined that disqualification for a period of six years is appropriate.

11. [11]
    I accept the applicant’s submission that such a disqualification period is consistent with the comparative cases on which the applicant relies.  In this case, the respondent’s offending was appalling and grossly inconsistent with the public expectations of a nurse, but it must be recalled that the purpose of this legislation is to ensure the safety of the public and is not retributive.  It is improbable that he will ever overcome the reluctance of any tribunal to ever allow his re-admission, and, as I say, in my view, in the absence of evidence of rehabilitation, the general view of any such tribunal should be that such people are not re-admitted.
12. [12]
    In the circumstances, I will make orders of the sort outlined at the start of these proceedings and will disqualify the respondent from applying for registration for a period of six years.  So the orders are as per paragraphs (a), (b), (c) and (e) of paragraph 53 of the applicant’s written submissions, provided that the period in subparagraph (c) is six years rather than five.  I will make no order as to costs.

Orders

13. [13]
    The following findings and orders are made by the Tribunal:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the conduct of the respondent in allegation 1 constitutes professional misconduct;
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of six years;
4. Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing a health service in a paid or unpaid capacity in a clinical or non-clinical capacity until such time as he obtains registration as a health practitioner; and
5. No order is made as to costs.